Thirty-five-year-old Kiran Sohail, mother of five, is taking the Pakistan state to court for failing to provide “affordable, accessible and quality maternal health services” as guaranteed under articles 9, 14 and 38(d) of Pakistan’s Constitution.

I want all women to “deliver [their babies] in a hospital by a trained midwife and if, God forbid, there is a problem like I had, they should be attended to immediately or guided to where they can seek help,” she says.

For nine years, Sohail suffered from a ‘shameful’ situation.

Medically-termed ‘rectovaginal fistula’, Sohail “was unable to stop stool from passing through”, after the birth of her first child in 2006.

One woman fights a legal battle to force the state to provide maternal health services

On May July 6, 2015, Sohail filed a public interest litigation in the Sindh High Court (SHC) with the help of a young lawyer, Sara Malkani, pointing out the state’s failure to provide maternal health services.

In addition to violating Pakistani laws, said the petition, the state also failed to honour the international covenants it has ratified, such as the International Covenant for Economic Social and Cultural Rights (ICESR). Article 12(1 and 2) of this recognises the right of everyone to enjoy the “highest attainable” physical and mental well-being with specific provisions for the reduction of stillbirth-rate and infant mortality.

Pakistan has also ratified the UN Committee on Economic Social and Cultural Rights providing for “family planning, pre- and post-natal care, emergency obstetric services and access to information, as well as to resources necessary to act on that information.” But Malkani also sees this as a failure on the part of the government that “disproportionately” impacts women.

Article 12 (2) of the Convention on Elimination of All Forms of Discrimination Against Women, which has been ratified by Pakistan, does provide for elimination of “discrimination against women in the field of healthcare in order to ensure, on a basis of equality of men and women, access to healthcare services, including those related to family planning.”

Given the dismal scores on maternal mortality and morbidity, shaming the government and then taking it to task using legal recourse seems to have made a mark. The case has come before three different benches of the High Court and all three have passed interim orders leading to formation of a court-appointed subcommittee.

Since health laws and policies now come under the purview of the provincial government after the passage of the 18th Constitutional Amendment, Sohail has held the Sindh Department of Health responsible for her condition. Gynaecologist Dr Shershah Syed, founder of Karachi’s Koohi Goth hospital, and women’s rights organisation Tehreek-i-Niswan became her co-petitioners.

Given the dismal scores on maternal mortality and morbidity, shaming the government and then taking it to task using legal recourse seems to have made a mark. The case has come before three different benches of the High Court and all three have passed interim orders leading to formation of a court-appointed subcommittee.

“The judges, particularly Justice Munib Akhtar, has time and again, emphasised the responsibility of the Sindh government to prevent and treat this condition by improving the state of maternal health services,” says Malkani, recalling how at one hearing the lawyer representing the Sindh government tried to get the petition quashed calling it frivolous. The judge reacted very sternly, she says, rapping the Sindh government for shirking its responsibility.

In fact, the court asked that a representative from the health department be present at every hearing to update the court. 

Malkani says some organisations in India were also holding governments accountable and taking them to court. “We have similar laws, similar legal system and to some extent the same issues vis-à-vis maternal health and I thought the same strategy could be applied here,” she says.

Dr Syed and his team, who performed her surgery, have transformed the lives of some 10,000 women suffering from fistula since 2005, but they point out that as many as 5,000 new cases keep emerging from all over the country. Of these, an esti­mated 1,000-1,500 are from Sindh but the province has only four hospitals that can re­pair fistulas.

But what happens if the state is unable to carry out its responsibilities towards women?

Unfortunately, says Malkani, Pakistani courts cannot enforce the international treaties the government ratifies or signs, but these treaties do have a persuasive value in court.

“In the past, the Supreme Court has considered human rights treaty obligations made by our government as a factor in its rulings directing government authorities to uphold its pledges,” she points out.  

But Malkani is hoping that the court recognises the government’s failure to provide affordable and accessible maternal health services and that this is a violation of the fundamental constitutional rights of women. “Such a ruling would be a precedent that would serve as a catalyst for others seeking redress for the violation of women’s right to reproductive health,” she says. 

The petitioners have requested the court to ask the health department to improve maternal health scores by training and equipping at least one gynaecologist in every district hospital of Sindh to provide fistula repair surgery; promoting awareness about the prevention and treatment of fistula through broadcasting public service messages on radio and television; ensuring basic and comprehensive emergency obstetric care and deploying trained midwives across Sindh as well as implementing a maternal death and morbidity audit system in every district of Sindh.

In the last court-appointed subcommittee meeting held in the second week of August, it was decided that between two to six government-appointed gynaecologists will be sent to Koohi Goth hospital for training of fistula-repair surgery by next month. “Hopefully this plan will be carried out,” says Malkani.  

While a lot remains to be done to improve women’s health issues, the government — in its usual piecemeal way — has recently taken some positive steps at provincial levels.

For example, all the provinces have their own population policy which they translate into budgetary allocations. So far Sindh is the only one that has come up with an approved Costed Implementation Plan, worth 141 billion rupees over five years.

Dr Tauseef Ahmed of Pathfinder International’s Pakistan office can see some progress on the ground. “Sindh is now pushing for implants, while Punjab has recently shown tremendous push towards institutional deliveries through establishing 24/7 facilities at basic health units.”

However, the negatives far outweigh the positives.

Ahmed says the much-touted lady health workers (LHW) programme promoting family planning seems to be out of favour with the result that the use of contraception has declined — instead nutrition is being focused on. 

Another reason, according to Ahmed, is the failure of the state to integrate family planning with antenatal programmes.

“In Punjab, deliveries at hospitals have increased but family planning counselling remains missing,” points out Ahmed. He adds: “No initiative is taken to integrate family planning in antenatal visits or even post-abortion cases.” However, recently, a ‘task shifting’ initiative, where paramedics are being trained in implants — while previously only doctors were trained — shows promise. “The initiative is experiencing serious resistance in Punjab by trainers [who happen to be doctors] although it has very smoothly been implemented in Badin, in Sindh,” he says.

Unlike hundreds of Pakistani women, Sohail’s issue had a happier ending. She stayed at Karachi’s Koohi Goth hospital for four days, where doctors stitched the damaged walls of her genitalia, giving her a new lease of life and as she put it, it was “all free!”

Dr Syed and his team, who performed her surgery, have transformed the lives of some 10,000 women suffering from fistula since 2005, but they point out that as many as 5,000 new cases keep emerging from all over the country. Of these, an esti­mated 1,000–1,500 are from Sindh but the province has only four hospitals that can re­pair fistulas. The majority of surgeries take place at the Koohi Goth Hospital, as the other facilities are ill-equipped and have only performed 200 or so surgeries between 2010 and 2013.

Kiran Sohail is among the seven million married Pakistani women who say they don’t want more children or want to space births, but don’t use any contraception methods either. “I know about the pill, the challa (intra-uterine device) and the injection but am too afraid to use them,” she says, citing the problem of swelling her sister-in-law suffered from when she tried any family planning method. Sohail’s husband does not want to use the condom always. But what if she gets pregnant? “I can use pills to abort,” she whispers.

Published in Dawn, EOS, September 1st, 2017