The government of Nepal recently promulgated the Right to Safe Motherhood and Reproductive Health Act, 2018, to give effect to Article 38 of the Constitution, which details a long list of fundamental rights for women.
Article 38 is a progressive law, outlining how Nepal created its feminist national policy under the constitutional framework, how it changed from a top-bottom policy to becoming part of an entire socio-political landscape.
The provision confers rights on women that include women’s equal right to lineage without any gender discrimination; right relating to safe motherhood and reproductive health; right to special opportunity in education, health, employment and social security on the basis of positive discrimination; and both spouses’ equal rights in property and family affairs.
It is structured to enhance women’s ‘rights,’ ‘reproduction’ and ‘resources’ in every aspect of national life. The constitutional arrangement is couched in a language with the objective of mainstreaming women, ending organized inequalities between men and women in each of the three ‘Rs. The fourth R-the ‘reality’ where women live, is yet to be dealt with.
In this context, the preamble of Right to Safe Motherhood and Reproductive Health Act, 2018 envisages that the legislation aims to ensure safe motherhood and reproductive health to every woman in a dignified and easily accessible way. But there are some provisions which have potential to frustrate the objective the legislation intends to achieve.
Section 7(3) of the Act provisions that if a government hospital fails to ensure treatment to a patient, it should refer the patient to other better government hospitals and, if the patient’s treatment is not possible in government hospitals, then the patient should be referred to a private hospital. This provision somehow acknowledges that private hospitals in Nepal are better equipped or advanced than government hospitals. If the service at government hospitals is good, patients would not be compelled to seek treatment in private hospitals. This Act is silent about ensuring the availability of latest equipment, consultant doctors or standard medical treatment in government hospitals, at par with international standards.
Patients should be referred in private hospitals in cases where government hospitals fail to ensure proper treatment. But who will have to bear the huge expenses? Isn’t it the patients?
Similarly, Section 13 of the Act allows 98-day paid maternity leave to every woman. The provision is applicable in all government, non-government and private institutions.
The benefit cannot be used by a woman for some weeks before the expected delivery date and the remaining weeks after childbirth. If a woman exhausts her 98-day pre-delivery leave, then she is bound to take unpaid leave later. In such circumstances, how can a woman, who is a single breadwinner of her family, secure the best interests of her and her baby’s health?
The Act does not provide any clear provision outlining on whom—employer or employee—the power lies in availing this leave.
The law in force does not slam the exercise of (arbitrary) discretionary powers of employers. In doing so, the state fails to limit the monopoly of employers in deciding the philosophy of paid maternity leave. The law does not make the employer duty bound to uphold the best interest of their female employees.
Further, Section 13(3) provides for a designated place for breast-feeding in every office. But enforcement agencies are hardly serious about implementing this provision and there are very few offices in Nepal that have made such arrangements.
The legal framework allows for legal protection against violation of fundamental rights. However, seeking remedy from courts is a complex process. In Nepal, disposal of cases is at a snail’s pace and justice delayed is common here.
Section 32(3) states that private hospitals charge easily affordable fees. But the Act does not outline what constitutes ‘affordable’ fees.
Section 22 envisages the allocation of a budget, but the provision does not provide the basis of budget allocation. Section 22(1) provides that the Central government would allocate the budget. This way, the law confers ample discretionary powers on the centre while allocating a budget. This goes against the federal principles.
The status quo, where quality health services, including safe motherhood, could not be availed in government hospitals leaves women insecure and frustrates the fundamental rights of women secured under the Constitution itself.
The factors resulting in maternal deaths include women’s poor health before pregnancy; inadequate, inaccessible or unaffordable healthcare; and poor hygiene and healthcare during childbirth. Socio-economic realities, such as poverty and women’s unequal access to resources, also play a major role in maternal deaths. This Act contains nothing to control and limit maternal deaths and address the concerns of poor and needy women.
The Act demonstrates leniency towards private hospital mafias and little seriousness towards ensuring safe motherhood and reproductive health.
(The author is a Nepal-based advocate with an LLM in Constitutional Law from Uttaranchal University, India. He can be contacted at firstname.lastname@example.org)