From its beginning itself, the Indian Health Care system always tried to be efficient and perfect but unfortunately, it always didn’t meet the expectations of the common people. Hence, the legislature always tries to amend laws, acts, and regulations from time to time to keep pace with the modern needs of society. As society is heading into liberalization, hence the laws have to be framed in the same manner. It is always disputed whether the right to abortion should be given to women or not. Voices from the factions of the feminists always fought for the grant of such rights.
Every day, we worry about our health and the health of our loved ones. Regardless of age, gender, socioeconomic background, or ethnic origin, we believe that health is the most fundamental and crucial good. Simultaneously, we are willing to make many sacrifices if it means that we and our families can live longer and healthier lives. In short, when we talk about happiness, we frequently refer to health. The right to health is an essential component of our human rights and our concept of a decent existence.1
INDIAN HEALTH LAWS AS PER INDIAN CONSTITUTION
- Article 232 is implied because it prohibits human interaction. It is worth noting that trafficking in women leads to prostitution, which is a major factor in the spread of AIDS.
- Article 243 deals with child labor and states that “no child under the age of 14 shall be employed in any production line, mine or other dangerous undertakings”. As a result, this paper emphasizes the value of the child’s best interests.
- Article 384 imposes a duty on the State to undertake social adaptations to promote state assistance to individuals, but cannot do so without general welfare.
- Section 39(e)5 – Concern for Worker Welfare.
- Article 416 – To impose an obligation on the state to open aid to persons with disabilities.
- Article 427– Ensuring the health of newborns and mothers through maternity benefits is a fundamental obligation of the State.
- Article 478 defines the State’s obligation to improve the diet and lifestyle of its citizens as a fundamental obligation. Several other welfare regulations also fall within the scope of public policy principles.
THE TRANSPLANTATION OF HUMAN ORGANS ACT, 19949
Congress approved the Human Organ Transplantation Act in 1994, and it went into effect on February 4, 1995, in Goa, Himachal Pradesh, Maharashtra, and all Union Territories.
After some time, except for Jammu & Kashmir and Andhra Pradesh, all states followed it. These states have laws in place that govern human organ transplantation.
This law’s principal goal is to regulate the removal, storage, and transplantation of human organs for therapeutic purposes while forbidding the commercial traffic of human organs.
The law covers extensive provisions on organ harvesting, organ storage, hospital regulation performing organ harvesting, storage, or transplantation, functions of competent authorities, hospital registration, and penalties for the aforementioned. crime.
SOME OF THE AMENDMENTS MADE IN THIS ACT
Physicians who work on the organ transplant team for transplant surgery are not permitted to serve on legal approval committees; if the prospective donor and receiver are not close relatives, the Approval Committee will confirm that there has been no business transaction between the beneficiary and the donor and that no payment has been given to the donor. You must make certain that no one is promised payment.; The approval board of the hospital, district, or state where the transplant is requested must accept exchange donation cases, and organ donations are only permitted from immediate family members of the exchange recipient.; If the receiver is very ill and needs a life-saving organ transplant within a week, the donor or recipient may go to an approved hospital for an expedited approval committee examination.; The Licensing Committee shall have a quorum of four members and shall not function unless the Chair, Secretary (Health) or designee, and Director of Medical Services or designee are present.; The national apex network organization will serve as the focal point. There are additional network organizations at the regional and state levels where a considerable number of organ or tissue transplants take place. Local hospitals, organ/tissue matching laboratories, tissue banks, and regional and national network organizations will be linked to state units. Such networks oversee the purchase, storage, transportation, matching, allocation, and transplantation of organs and tissues, as well as set norms and standard operating procedures.; A nationwide registry of human organ and tissue donors and receivers will be established, with information available online at the national, regional, and state levels. Country/region registrations are based on state-level registrations. The identity of those in the database may not be revealed.10
MEDICAL TERMINATION OF PREGNANCY ACT,1971
Legislators have drafted laws to protect women from unsafe abortions. The Medical Termination of Pregnancy Act 1971 is the name of this act. There are certain circumstances in which a pregnancy can be terminated. Despite the law, in many cases, women have been denied the right to have an abortion. The judiciary also advised the central government to change the current abortion law to improve women’s lives. The country’s laws recognize that abortion is a human right and, if made illegal, endangers the health of women with unwanted pregnancies. As a result, on August 10, 1971, the Medical Abortion Act passed both houses of Parliament and was signed by the then President of India. This act was called the “MTP Act of 1971”11. Although this law permitted the termination of unwanted pregnancies, it did not apply to all types of pregnancies. According to the law, women can only have abortions by licensed doctors at hospitals controlled or licensed by the government.
In the case of Justice K.S. Puttaswamy v. Union of India12, The Supreme Court of India has clearly stated that it is a woman’s constitutional right to make reproductive choices as part of her freedom under Article 21 of the Indian Constitution. Abortion is recognized as an eligible right under the Medical Care Act of 1971.
In the landmark judgment Roe v. Wades13 of the U.S. Supreme Court. The court ruled that states cannot restrict a woman’s right to have an early abortion. States may control such abortions later in pregnancy, taking into account the woman’s mental and physical health. Abortion is considered both a fundamental right and a human right.
Section 314 of this Act states that if a woman’s life is threatened or harmed, or if her pregnancy is the sole result of rape or other crime, or if a child is about to be born standing and they may suffer from physical or mental impairments that they will suffer for the rest of their lives then she can go for abortion.
THE SURROGACY (REGULATION) BILL, 2019
On 15 July 2019, Minister of Health and Family Welfare- Shri Dr. Harsh Vardhan introduced the Surrogacy Act (Regulation) 2019 in Lok Sabha intending to hand over children to desirable couples after birth.
Although commercial surrogacy is prohibited by law, altruistic surrogacy is permitted. Except for medical expenses and insurance coverage during pregnancy, there is no financial compensation for altruistic surrogacy surrogates. Surrogacy or related procedures performed for financial benefits or rewards (cash or in kind) beyond basic medical expenses and insurance coverage are known as commercial surrogacy.
Surrogacy is allowed if: (ii) altruistic; (iii) not for commercial purposes; (iv) not produce children for prostitution, prostitution, or other forms of exploitation; (v) in case of sickness or illness as specified in the Regulations;15
THE PREVENTION OF FOOD ADULTERATION ACT, 1954
Food adulteration is the deliberate introduction of pollutants into food or beverages to lower the price while increasing the amount. This is a big issue in India, affecting food quality and causing deadly illnesses in humans and animals. Food tampering can induce stomach upset, organ inflammation, and heart, liver, and kidney diseases, as well as jeopardize life.
It was necessary to address these challenges by enacting legislation to avoid such pollution. In India, food adulteration restrictions have been in effect since 1899. States and towns had their own rules and regulations to prevent adulteration because it was the pre-Independence era.16
By publishing in the Official Gazette, the federal or state governments may nominate duly represented representatives. Food inspectors must be qualified for the job and have no financial ties to the things they inspect. Food inspectors are considered officials under Section 21 of the Indian Penal Code.
THE MENTAL HEALTH ACT, 1987
The Mental Health Care Act, 201717, introduced in the Raja Sabha in August 2016 and authorized by the Honorable President of India in April 2017, was unanimously passed by the House of Representatives on March 27, 2017. According to the new law, “mental disease” is defined as “a substantial abnormality in thinking, mood, cognition, orientation, or memory that significantly impairs judgment or the ability to carry out the responsibilities of regular living, as well as any problem connected with mental illness.” It is described as “doing stuff.” This bill will remove the current Mental Health Act of 1987, which has been heavily condemned for violating the rights of mentally ill persons and paving the way for their seclusion. Section 309 of the Indian Penal Code, which criminalized attempted suicide by a person suffering from a mental disease, was repealed by the Act. Another component of the law is that it protects the rights of those suffering from mental illnesses by allowing them to obtain treatment and choose how they want to be treated for their disease via a living will.
CURRENT HEALTHCARE SYSTEM
The Basic Law places health care primarily under the jurisdiction of state governments, but includes a wide range of commodities on a parallel list, giving the Center ample latitude. It has successfully expanded into the care sector. As a result, the central government has a much more important role in health than the constitution requires. The central government provided the framework for health policy and planning. In practice, the central government has promoted many national programs (leprosy, tuberculosis, blindness, malaria, smallpox, diarrhoea, filariasis, goitre, and now vertical programs for HIV/AIDS). Still, the states had very little control over it. With accompanying funding from the federal government, the state agreed for funding health care programs. These programs are implemented nationwide. Then there are the centre’s own family planning and universal health programs. In summary, central government involvement in health care delivery within a state is an important factor to consider in any public health service audit. The distribution of medical services favours metropolitan areas. In large cities, there are several public hospitals (including teaching hospitals) depending on the population. On average, the district has one 150-bed general hospital in the main district town, with several smaller hospitals and pharmacies scattered in the district’s neighbouring towns and even larger villages. Rural hospitals, primary health centres (PHCs), and sub-centres provide a variety of medical services and outreach programs in rural areas of the district.
In India, the private healthcare sector is huge. In 2002, the private sector accounted for about 62% of hospitals, 54% of pharmacies, and 35% of beds. An estimated 75% of allopathic physicians work in the private sector, and the remaining 80% are private practitioners. More than 90% of his non-allopathic doctors work in the private sector. Private health care services, especially those provided by general practitioners, are the most commonly used forms of health care. Although exact numbers are unknown, the private sector, both urban and rural, also has a large number of unskilled practitioners whose services are in high demand. According to available data, in 2004, there were over 660,000 registered allopathic physicians and over 780,000 non-allopathic physicians. Of the 1.4 million doctors, about 1.2 million are expected to work in the private sector.18
THE OBLIGATION OF THE STATE TO PROVIDE PROPER INFRASTRUCTURE
It is the state’s fundamental role to provide confined well-being to its residents. Most likely, the legislature is fulfilling its vow by opening government medical clinics and wellness centres, but for them to be significant, they must be within the scope of its kin and have sufficient fluid quality. Because it is one of the most sacred tasks of the express, every resident of this government assistance state looks to the state to carry out this obligation with top priority, including through the assignment of suitable assets. This not only secures the privileges of its residents, but also benefits the state in achieving its social, political, and financial objectives. This consecrated commitment will be performed by the well-being experts at any point when they are achieving the life of a mishap casualty with adequate consideration and zeal.
The court also noted that the law of personhood, or the principle of the right to life envisioned in Article 21 of the Indian Constitution, broadens its scope to include the human character in full bloom to maintain an individual’s poise and to carry on with a life of nobility and correspondence. The specialist’s competence is an essential component of the right to life. Overall, medical care while in administration or after retirement was seen as a basic entitlement, and even private ventures are expected to supply worker well-being protection. Even though the Supreme Court of India has declared the right to social insurance to be a basic right in several rulings, the state has not adequately recognized it. What’s more, in a society where the poor and mistreated outweigh the wealthy and can’t afford the fees of paid administrations in any legislative or private emergency clinic, the government should offer unique medical coverage arrangements at a reasonable cost.19
- Sanjay Nikaash, Right To Health And Health Care, Legal Service India (Last Visited: 05 October, 2022) Available at: https://www.legalserviceindia.com/legal/article-6107-right-to-health-and-health-care.html
- The Constitution of India,1950, Art.23
- The Constitution of India,1950, Art.24
- The Constitution of India,1950, Art.38
- The Constitution of India,1950, Art.39
- The Constitution of India,1950, Art.41
- The Constitution of India,1950, Art.42
- The Constitution of India,1950, Art.47
- The Transplantation of Human Organs Act, 1994, No. 42 of 1994, Acts of Parliament,1994 (India)
- The Editor acts related to human organ donation vikaspedia(Last Visited: 9th October,2022) Available at: https://vikaspedia.in/health/organ-donation/transplantation-of-human-organs-act-1994
- The Medical Termination of Pregnancy Act, 1971, Act No. 34 of 1971, Acts of Parliament,1971(India)
- K.S. Puttaswamy and Anr. vs. Union of India ((2017) 10 SCC 1)
- Roe v. Wade,410 U.S. 113 (1973)
- The Medical Termination of Pregnancy & 3, Act, 1971, Act No. 34 of 1971, Acts of Parliament,1971(India)
- The Surrogacy (Regulation) Bill, 2019, Bill No. 156-C of 2019, Bills of Parliament,2019(India)
- The Prevention of Food Adulteration Act, 1954,(37 of 1954), Acts of Parliament,1954(India)
- The Mental Healthcare Act, 2017, No. 10 of 2017, Acts of Parliament,2017(India)
- Health Care Case Law in India, CEHAT and ICHRL Available at: https://www.academia.edu/1743189/Health_Care_Case_Law_in_India
- Kunal Goswami, Public Health Laws in India, ProBono India (August 30, 2020) Available at: https://www.probono-india.in/blog-detail.php?id=160
This article has been written by Jay Kumar Gupta. He is currently a second-year BBA LL.B.(Hons.) student at the School of Law, Narsee Monjee Institute of Management Studies, Bangalore.