This article describes the relation of law and relevance of social security to health and welfare of women and children in India.

HEALTH LEGISLATIONS RELEVANT TO MCH

A nation or a society cannot progress and prosper where women are underprivileged and children are exploited. As equality before law is the basis of Indian Constitution, an enabling provision is available in article 15 which the state can use to make special provisions for women and children. To cite a few examples, for equality of men and women, including means of livelihood and equal pay for equal work is taken care off by The Minimum Wages Act, Equal Remuneration Act and Contract Labour Act. For securing just and humane conditions of work and maternity relief, the Maternity Benefit Act is in force. The MTP Act is meant to protect the physical and mental health of pregnant women. The PNDT Act, aimed at preventing sex (mostly female), selective abortion, warns the people, in effect, that the life of a female, even an unborn one, cannot be trifled with and has a right to live.

Similarly, to prevent the abuse of tender age of children the Child Labour Act and the Child Marriage Restraint Act are in force. To prevent exploitation of poor people the Bonded Labour Act is framed. Likewise, the Infant Milk Substitutes (IMS) Act is to protect the health of infant by promoting breast-feeding.

In this background, let us go through the gist of a few select health legislations as relevant to MCH. They are presented in an order/sequence as per the year of their enactment. The MCH component of the Health Law is focused and described keeping in mind the PGDMCH course requirements.

The Child Marriage Restraint Act, 1929

The aim of the act is to prevent child marriage so that child can get an opportunity to fully develop before getting the responsibility of marriage in their adulthood. The child marriage is also linked with population control and that is why it was necessary to increase the age of marriage.

Child means a person who, if a male has not completed twenty-one years of age, and if a female, has not completed eighteen years of age. Being a male above eighteen years of age and below twenty-one, contract of marriage shall be punishable with simple imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both. Parents or guardian or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permits it to be solemnized or negligently fails to prevent it from being solemnized, shall be punishable with simple imprisonment which may extend to three months and shall also be liable to fine. The Act do not provide punishment to the woman.

The Factories Act, 1948 (Amended in 1987)

The Factories Act is the principal legislation, which governs the health, safety and welfare of workers in factories. The recent amendment included occupational health and safety, and prevention and protection of workers employed in hazardous processes. A factory under the act is an establishment employing 10 or more workers where power is used, and 20 or more workers where power is not used.

The Act prohibits employment of children below the age of 14 years and declares persons between the ages 15 and 18 to be adolescents. Adolescents should be duly certified by the “Certifying Surgeons” regarding their fitness for work. Restrictions have been laid down on employment of women and children in certain dangerous occupations. Adolescent employee is allowed to work only between 6 AM and 7 PM. No women should be employed between 7 PM and 6 AM. One crèche should be provided where more than 30 women are employed. Cool drinking water facilities and one latrine for 25 females workers should be provided. The Chief Inspector of Factories is authorized to enforce the provisions of the law.

The Employees State Insurance (ESI) Act, 1948 (Amended in 1989)

The act provides for certain cash and medical benefits to industrial employees for sickness, maternity and employment injury. The Act covers factories, shops, hotels and restaurants, cinemas and theatres, road motor transport establishments. It covers all employees’ manual, clerical, supervisory and technical getting up to Rs. 6500/- per month (1977). The employer, employee and the State Government all contribute towards the provision of the benefits under ESI.

The “maternity benefit” is payable in cash to an insured woman for confinement/ miscarriage or sickness arising out of pregnancy/confinement or premature birth of child or miscarriage. For confinement the duration of benefit is 12 weeks, for miscarriage 6 weeks and for sickness arising out of confinement etc. is 30 days. The benefit is allowed at about full wages.

The Plantation Labour Act, 1951

The Act provides for the welfare of labour and regulates the conditions of service in plantations. The Chief Inspector have to insure that the medical benefits to the workers and their families, drinking water, latrines and urinals are provided. Canteens, crèches, recreational, educational and housing facilities should be provided by the employers. Sickness and maternity benefits are also provided.

The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954

The Act aims to control, the advertisement of drugs in certain cases, to prohibit the advertisement for certain purpose of remedies alleged to possess magic qualities and to provide for matters connected therewith.

Unless prescribed by registered medical practitioners or after consultation with the Drug and Cosmetics Act 1940, no person or company, shall take any part in the publication of any advertisement referring to any drug that is used for:

1. The miscarriage in woman,
2. Maintenance or improvement of the capacity of human beings for sexual pleasures,
3. Correction of menstrual disorders in women, and
4. The diagnosis, cure, mitigation, treatment or prevention of any disease.

The Immoral Traffic (Prevention) Act, 1956 (Amended in 1986)

Prostitution or Commercial sex is a social evil, indicates poverty and no woman would indulge in prostitution until circumstances compel her to do so. It is an indicator of lower status of women, alcoholism and weak social fabric. Recently, the emergence of HIV and AIDS has once again forced the society to reconsider the change in concept of sexuality. High prevalence of HIV and other STDs and deaths due to AIDS among commercial sex workers calls for legal action besides health action from the Government.

In section 2, many words like brothel is defined as “any house, room or place used for purpose of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes”; child is the one who has not completed 16 years of age, “minor” who has completed 16 years but not completed 18 years and “major” who has completed 18 years of age, and prostitute has been defined as “sexual exploitation or abuse of person for commercial purposes”.

Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel, shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to Rs. 2000/- and in the event of a second or subsequent conviction with rigorous imprisonment for a term of not less than two years and not more than 5 years and also with fine which may extend to Rs. 2000/- (section 3).

The Maternity Benefit Act, 1961

This Act is to protect and empower women as workers. To prevent unfair employment practices and exploitation of women in the labour market, and to safeguard the health and well being of the mother and child it was essential to provide maternity protection to working women. The Act applies to whole of India. It applies to all establishments — factories, mines, manufacturing, and shops etc., where a minimum of ten or more workers are working. The Act is amended in 1995 in which miscarriage is replaced by miscarriage or MTP (permissible under the provision of the MTP Act, 1971).

The State Governments can, with the approval of the Central Government, declare that all or any of the provisions of the Act apply to any of the establishments. According to this Act, every woman is entitled to payment of maternity benefit at the rate of the average daily wage for the period of six weeks up to and including the day of her delivery and for the six weeks immediately following delivery i.e. a total of 12 weeks. Pregnant women must exempt from any work, which involves long hours of standing.

If no prenatal confinement and postnatal care are provided for by the employer free of charge, than every woman is entitled to a bonus of Rs. 250/-. In case of miscarriage or MTP on production of proof a woman is entitled to leave with wages for a period of six weeks immediately following the day of her miscarriage or MTP. She is qualified for this benefit if she has completed 160 days of 12 months of job immediately preceding the date of her expected delivery.

There is a provision of leave with wages for tubectomy operation for a period of 2 weeks. Every woman who returns to duty after her delivery should, in addition to the interval of rest allowed, be allowed in the course of her daily work two breaks of prescribed duration for nursing the child until it attains the age of 15 months.

If any employer contravenes the provisions of this Act or the rules he/she is punishable with imprisonment from three months up to one year or/and with fine from Rs. 2000/- to Rs. 5000/- or with both.

The Dowry Prohibition Act, 1961 (Amended in 1986)

An Act to prohibit the giving or taking of dowry viz. that is any property or valuable security given or agreed to be given either directly or indirectly by any party or parents of either side at the time of marriage, or before or after the marriage ceremony. It extends to the whole of India except Jammu and Kashmir. The dowry system has been a great social and health problem. So many cases of burns, homicides, and suicides are reporting to the medical casualty in the hospitals. These cases are mainly due to the fact that dowry was not given according to the expectations of bridegroom family. As the value of a male child has been fixed much higher as compared to a girl and woman status is also low, the bride’s parents has to offer costly gifts, and spend lot of money on arranging household goods to present even before the marriage which is illegal. If any person violates the Act he/she may be punished with imprisonment for a term not less than 5 years and with fine which shall not be less than Rs. 15,000/- or the amount of the value of such dowry, whichever is more. Under the Amended Act of various states many types of prohibitions like advertisement, scope of dowry, gifts, presents, and joint accounts are also included.

The Dowry Prohibition (Maintenance of Lists of presents to the bride and bridegroom) Rules 1985 prescribes that list of gifts, and other items should be made and kept. Where the death of a woman is caused by any burns or bodily injury within 7 years of her marriage and shown that soon before death she was subjected to cruelty or harassment by her husband or any relatives is known as dowry death and rigorous punishment is for not less than 7 years and may extend to life imprisonment.

The Registration of Births and Deaths Act, 1969

The Registration of Births and Deaths Act was placed on the statute book in 1969 with the aim to collect and compile vital statistics, which is necessary for planning and administration. Births and Deaths are vital events in any population. Knowledge about these events is essential for understanding of demography, and health and civic needs. The Act has given statutory authority to the Registrar General, India to coordinate the work of civil registration throughout the country. Usually, The Directorate of Health Services are the Chief Registrars. However, in few states, Directorate of Economic and Statistics are the Chief Registrars. In rural areas, the local registrars are mainly drawn from Panchayat, Police, Health and Revenue Department. In Urban areas, Health Officers of the Municipalities or Corporations, or the Executive Officers are the Registrars.

Every registrar has to register births and deaths occurring within his/her administrative area. The information regarding occurrence is to be supplied within 7 days in case of deaths and 14 days in case of births. Events not registered within prescribed time are registered as delayed events on payment of prescribed fee if it is done within one month. Besides late fee, an affidavit is required from a notary public or an officer for registration in case of delay more than 30 days but within a year. For registration of events beyond one year, an order from class I officer/magistrate is necessary.

Every Registrar is required to send periodical returns to the Chief Registrar who send their reports to the Registrar General, India. On the basis of the annual vital statistics returns received from the states, the Registrar General, India brings out a comprehensive annual report entitled, “Vital Statistics of India”.

The Act provides for medical certification of cause of death. The enforcement of this is left to the state governments depending on the facilities available. A medical practitioner has to certify free of cost and in the prescribed format, the cause of death if he/she is attending the deceased during his last breath or illness.

The Medical Termination of Pregnancy (MTP) Act, 1971 (The MTP Rules, 1975)

The Medical Termination of Pregnancy Act, 1971 lays down:

1. The conditions under which a pregnancy can be terminated
2. The person or persons who can perform such terminations, and
3. The place where such terminations can be performed

The Conditions Under which a Pregnancy Can be Terminated Under MTP Act, 1971

There are five conditions that have been identified in the Act:

1. Medical— where continuation of the pregnancy might endanger the mother’s life or cause grave injury to her physical or mental health.
2. Eugenic — where there is substantial risk of the child being born with serious handicaps due to physical or mental abnormalities.
3. Humanitarian — where pregnancy is the result of rape.
4. Socio-economic — where actual or reasonably foreseeable environments (whether social or economic) could lead to risk of injury to health of the mother.
5. Failure of contraceptive devices — The anguish caused by unwanted pregnancy resulting from a failure of any contraceptive device or method can be presumed to constitute a grave mental injury to the health of the mother. This condition is unique feature of the Indian Law and virtually allows abortion on request, in view of the difficulty of proving that a pregnancy was not caused by failure of contraception.

The written consent of the guardian is necessary before performing abortion in women under 18 years of age, and in lunatics even if they are older than 18 years.

The Person or Persons Who can Perform Abortion

The Act provides safeguards to the mother by authorizing only a Registered Medical Practitioner having experience in gynaecology and obstetrics to perform abortion where the length of pregnancy does not exceed 12 weeks. However, where the pregnancy exceeds 12 weeks and is not more than 20 weeks the opinion of two Registered Medical Practitioners is necessary to terminate pregnancy.

Where Abortion can be Done

The Act stipulates that no termination of pregnancy shall be made at any place other than a hospital established or maintained by Government or a place approved for the purpose of this act by Government.

Abortion services are provided in hospitals in strict confidence. The name of the abortion seeker is kept confidential, since abortion has been treated statutorily as a personal matter.

The MTP Rules, 1975

Rules and Regulations framed initially were altered in October 1975 to eliminate time-consuming procedures involved in MTP and to make services more readily available. These changes have occurred in 3 administrative areas.

Approval by Board

Under the new rules, the Chief Medical Officer of the district is empowered to certify that a doctor has the necessary training in gynaecology and obstetrics to do abortions. The procedure of doctors applying to Certification Boards was removed.

Qualification Required to do Abortion

The new rules allow for registered medical practitioners to qualify through on the spot training:

“If he has assisted an RMP in the performance of 25 cases of Medical Termination of Pregnancy in an approved institution.”

The doctor may also qualify to do MTPs under the new rules if he has one or more of the following qualifications, which are similar to the old rules:

1. 6 months housemanship in Obstetrics and Gynaecology.
2. A post-graduate qualification in Obstetrics and Gynaecology.
3. 3 years of practice in Obstetrics and Gynaecology for those doctors registered before the 1971 MTP Act was passed.
4. 1 year of practice in Obstetrics and Gynaecology for those doctors registered on or after the date of commencement of the Act.

The Place where Abortion is Performed

Under the new rules, non-governmental institutions may also take up abortions provided they obtain a license from the Chief Medical Officer of the District, thus eliminating the requirement of private clinics obtaining a Board license.

Impact of Liberalization of Abortion

Although abortion has been greatly liberalized, the annual number of legal abortions are about 0.6 million, which contribute hardly 10% of the abortions done in the country. In other words, illegal abortions are still rife although it is now more than 30 years, since the MTP Act has been promulgated. Experts opine that facilities for safe, legal abortion should be made universally available.

Repeated abortion is not conducive to the health of the mother. It has to be ensured that abortion does not replace the traditional methods of birth control. The numerous abortion hazards, which are inherent, should serve as a warning that abortions under the best of circumstances can never be as safe as efficient contraception.

The Consumer Protection Act (CPA), 1986

The CPA is a piece of comprehensive legislation and recognizes six rights of the consumers, namely:

1. Right to safety,
2. Right to be informed,
3. Right to choose,
4. Right to be heard,
5. Right to seek redressal, and
6. Right to consumer education.

Consumers with complaints can approach the Commissions at the District, State and Central level. There is no court fee and the consumer does not have to go through lawyers.

The Supreme Court declared that doctors were like any other providers of services under contract, and therefore are under the same obligation to compensate the purchaser (patient) for any deficiency in the quality of their services.

Negligence means that a person who holds himself ready to give medical advice and treatment implied undertakes that he is possessing of skill and knowledge for the purpose. Such a person, who consulted by a patient, owes him certain duties, namely a duty of care in deciding what treatment to give or a duty of care in administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. Doctors with independent practice, unless rendering only free service, private hospital charging all, and all hospitals having free as well as paying patients, doctors/hospitals paid by an insurance firm for treatment of a client or an employer from that of an employee, are liable for any negligence.

If the cost of the services or goods and compensation asked for, is less than Rs. 1 lakh, then the complaint can be filed in the District Forum. If the cost is more than Rs. 1 lakh but less than 10 lakhs, the complaint can be filed before the State Commission and for higher amount the complaint can be filed before the National Commission at New Delhi which shall decide the case within a defined period.

The Juvenile Justice Act, 1986

The Act provides for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles, and for the adjudication of certain matters relating to, and disposition of delinquent juveniles.

In the Act, Juvenile means a boy who has not attained the age of 16 years or a girl who has not attained the age of 18 years. Neglected juvenile means a juvenile who — i) is begging,

lives in brothel, or with a prostitute, iii) who is being abused or exploited, or iv) destitute. Delinquent juvenile means a juvenile who was found to have committed an offence.

It is the responsibility of state to look into the problem of juvenile social maladjustment and make special efforts to mobilize all possible resources of the family, the community, and social organization for rehabilitation and betterment of juvenile future.

Any juvenile, who is likely to be abused, exploited and inducted into criminogenic life and is in need of legal support to be appropriately rehabilitated.

Apart from prohibiting the confinement of the juvenile in a police lockup or jail, his contact with the police has been reduced to the minimum. Inquiry of his case should be completed within a period of 3 months from the date of commencement. Such juvenile should be produced before the Juvenile Welfare Board, and the delinquent are to be dealt with the Juvenile Court. Criteria for admission in Juvenile Homes, Observation Homes, Special Homes, transfer, and criteria for Board setting up, selection of members or magistrate have been defined in the Act. Criteria for setting up of social organization or institution for juvenile welfare are also defined by the Act.

The Act has described special offences in respect of juvenile, like punishment for cruelty to juvenile, employment for begging, giving intoxicating liquor or narcotic drug or psychotropic substance and exploitation of juvenile employee.

The Child Labour (Prohibition and Regulation) Act, 1986

The main aim of the Act is to prohibit the engagement of children in certain employment and to regulate the conditions of work of children in certain other harmful employment. This Act repealed the Employment of Children Act, 1938. It extends to the whole of India. According to this Act the child means a person who has not completed his 14 years of age. No child shall be employed in any hazardous occupation — transport, railways, catering establishment at a railway station or in train, construction or port, beedi making, carpet-making, cement factory, cloth printing, dyeing, weaving, mica-cutting and splitting, soap tanning, wood-clearing, matches, explosives and firework. The Central Government shall form “Child Labour Technical Advisory Committee” to advise the central government for the purpose of addition of any other occupations or processes. If any child is working then he shall not work for more than 6 hours per day and 3 hours continuous before he has had

an interval for rest for at least one hour. He will neither be allowed to work between 7 p.m. and 8 a.m., nor allowed to do overtime. He will be given a weekly full wage holiday. If any establishment has children as the workers should inform the inspector who will inspect the conditions and nature of work and also certify age of the child. Each establishment where a child is working makes sure of his health and safety. Any violation of the Act may lead to the punishment with imprisonment or fine, or both.

The Infant Milk Substitutes (IMS), Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992

An Act to provide for the regulation of production, supply and distribution of infant milk substitutes, feeding bottles and infant foods with a view to the protection and promotion of breast feeding and ensuring the proper use of infant foods and for matters connected therewith or incidental thereto. This act is applied to the whole of India. Various terms are defined in section 2. According to section 3, no person shall advertise, take part in promotion of use or sale, supply of or donate or distribute infant milk substitutes or feeding bottles, or give an impression or create a belief in any manner that feeding of infant milk substitutes is equivalent to or better than mother’s milk. Section 6 gave direction that  such container of infant foods and milk substitutes must affix label clearly written in local language that “Mother’s milk is best for your baby”, “should be used only on the advice of a health worker”, “a warning sign if used replacing mother’s milk”. No picture of baby or mother shall be depicted on the containers. Beside this all about manufacturing date, batch number, expiry date, compositions, etc. should also be written and must follow the instructions and guidelines given under the Prevention of Food Adulteration Act, 1954. All educational material whether audio, or visual shall contain the content of benefits and superiority of breast feeding. No person other than health workers or institutions demonstrate the need and feeding of milk substitutes. Food inspector working under Prevention of Food Adulteration Act or any authorized person shall be responsible for inspection or seizing activities if he/she finds that there is violation of this Act.

Any person who contravenes the provision of various sections shall be punishable with imprisonment for a term, which may extend to three years, or with fine, which may extend to five thousand rupees, or with both. Following voluntary organizations are notified where a complaint in writing can be made:

1. Central Social Welfare Board, Samaj Kalyan Bhawan, B-12 Tara Cresent, Institutional Area, South of IIT, New Delhi-110 016.
2. Indian Council for Child Welfare, 4, Deen Dayal Upadhyaya Marg, New Delhi-110 002.
3. Association for Consumer Action of Safety and Health (ACASH), Room No. 21, Lawyer’s Chambers, Bombay-400 002.
4. Breast Feeding Promotion Network of India (BPNI), BP-33, Pitampura, Delhi-110 034.

The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994

This Act provides for the regulation of the use of prenatal diagnostic techniques for the purpose of detecting genetic or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of the misuse of such techniques for the purpose of prenatal sex determination leading to female foeticide; and for matters connected therewith or incidental thereto.

The Act defines following terms:

1. Genetic Counselling Centre: An institute, hospital, nursing home or any place, by whatever name called, which provides for genetic counselling to patients.
2. Genetic Clinic: A clinic, institute, hospital, nursing home or any place, by whatever name called, which is used for conducting prenatal diagnostic procedures.
3. Prenatal diagnostic procedures and techniques: All gynaecological or obstetrical or medical procedures and techniques such as ultrasonography, foetoscopy, taking or removing samples of amniotic fluids, chorionic villi, blood or any tissue of a pregnant woman for being sent to a genetic laboratory or genetic clinic for conducting prenatal diagnostic test.
4. Prenatal diagnostic test: Any tests or analysis carried out to detect genetic or metabolic disorders or chromosomal abnormalities or congenital anomalies, haemoglobinopathies or sex-linked diseases.

No genetic counselling centre, genetic clinic or medical geneticist, gynaecologist or registered medical practitioner shall conduct such test unless specified by the Central Supervisory Board at a place other than a place registered under the Act. In following conditions these tests can be conducted:

1. Age of the pregnant woman is above 35 years;
2. The pregnant woman has undergone two or more spontaneous abortions or foetal loss;
3. The pregnant woman has been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals;
4. The pregnant woman who has a family history of mental retardation or physical deformities such as spasticity or any other genetic diseases; and
5. Any other disease specified by the Central Supervisory Board.

No test will be conducted on the willingness of husband or without written informed consent of the woman. Sections 7-16 explain the procedures of the establishment of a Central Supervisory Board, appropriate authority and advisory committee. Registration of genetic counselling centres/laboratories/clinics are explained in Sections 18-21. Even any advertisement or publication on these facilities is an offense and severe penalties are defined in Sections 22-28. Anybody who violate this law may be punished with imprisonment for a term, which may extend to three years and with a fine, which may extend to ten thousand rupees or both.

Society has responsibility to poor, old, disabled, sick and dependants for their welfare and security. In the past, in large or joint families more so in rural areas those in need or disadvantaged were looked after by their relatives and friends. Following industrialization, migration and urbanization the nuclear families are on the rise and with the disintegration of joint family system, the naturally inbuilt social support system is also waning.

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IGNOU unit 20 :  legislations relevant to MCH and social security