Dossier 16: Women’s reproductive rights and the politics of fundamentalism: A view from Bangladesh

Women's reproductive rights and the politics of fundamentalism: A view from Bangladesh [1]

Sajeda Amin and Sara Hossain

Will it be we, the women living in the Muslim city, who will pay the price…? Will we be sacrificed for the community security in the coming rituals to be performed by all those who are afraid to raise the real problem -the problem of individualism and responsability, both sexual and political?[2]

We do not accept -and will not accept- the concept of a single parent family or the concept of a family in its plurality of forms… Single parent family means a woman without a legal husband with a child without a legal father.[3]

As women are gradually becoming more visible in public life, and are breaking the bonds of patriarchal control, they are also facing a backlash articulated in terms of the reassertion of cultural, traditional, and religious values. In the ensuing struggle over women's rights, rival interpretations of Muslim laws, reformist and anti-reformist, are enlisted by each of the parties for their own aid. What is forgotten in the process, however, are women's own experiences, and the struggle to bring those experiences to bear on the formulation of standards by which to secure women's rights.

The Constitution of Bangladesh of 1972 guarantees the right of life and personal liberty, to equality under the law, to non-discrimination on the grounds of sex, and to equal protection by the law. It provides, subject to 'reasonable restrictions', the right to freedom of association and freedom of thought, conscience, speech, and expression. There is an obligation upon the State to take all measures to ensure the right to health and education of all citizens.

However, to the extent that there is any articulation of reproductive rights in Bangladesh, it is focused on the right to health and derived from the principle that access to health and freedom from disease are basic needs. The family planning programme, instituted to meet demographic goals of reducing population growth, has been the principal source of contraception for women. Contraceptives are readily available at little or no cost to women all over the country. Denial of access to contraception, therefore, is not perceived, at least by married women ,as a major problem. In these circumstances, rather than criticizing the availability of contraception, women's groups have frequently criticized the family planning programme for its overzealous commitment to increasing contraceptive prevalence for fertility control, because the programme diverts attention from meeting the full range of women's reproductive health needs. Demographically-driven programmes are accused of treating women as objects and being a means towards achieving population control objectives.

It is not surprising, therefore, that women's demands for reproductive health services are voiced in terms of freedom from violence, coercion, and inappropriate use of reproductive technology. The equally important focus on women's needs in positive terms such as better access to health services, better quality services, more diverse health services, and services for health needs other than for fertility control, receive less attention. Again, there are few attempts to explicitly articulate the notion of the right to reproductive health or freedom, including the right to reproductive self-determination. Women's groups in Bangladesh have largely remained conspicuously silent on the issue of sexuality. This silence exists despite highly publicized events of extremely grave violations of women's rights. These violations have not directly infringed on access to the means of reproductive control, but instead, involved digressions from socially acceptable sexual practices.

Legal basis of family planning

All family planning services, other than abortion, are legal. (By social consensus, contraception and related services are only provided to married women). However, abortion during the first trimester is widely practiced under the name of Menstrual Regulation (MR). MR services were initially justified as preventing botched abortions and consequent maternal mortality; it finds its legal basis in an interpretation that it is "an interim method to establish non-pregnancy". This effectively removes it from the Penal Code. MR services have been widely available since the late 1970s as part of the family planning programme and provided at government health facilities free of cost by government functionaries who receive high quality training.

Despite the widespread practice of MR, the criminal status of abortion undoubtedly contributes to the current moral ambiguity of the practice. In most rural contexts, MR/abortions are carried out secretly, because the woman obtaining the process may face serious repercussions, including social sanctions. Although there are no reported court decisions regarding prosecutions for abortion, if a situation involving MR/abortion is exposed, it may be heard before informal village tribunals (salish), in particular if the abortion is the product of an illicit relationship or adultery.

Rising contraceptive prevalence in Bangladesh

Bangladesh has been noted for the very rapid rise in contraceptive use over a relatively short period. Most demographers attribute the rapidly changing fertility profile that has accompanied rising contraception to an aggressive family planning programme.

The Bangladesh Government declared population its number-one problem in 1976, and combined an elaborate family planning programme with a strong motivational campaign, which has been backed by extensive external financial support. The programme emphasizes access to contraceptive services and delivers them at the doorstep of women even in remote rural areas.

The use of modern contraceptives rose from 7.7% in 1975 to 30% in 1989 and 45% in 1993. Access to contraception went from being available to less then 10% to nearly 50% of married women. Contraceptive use is even higher among women who participate in credit schemes meant to give women independent access to cash and income.

Religiosity and religious opposition to contraception

A recent analysis of factors that affect women's contraceptive use shows that religiosity (as measured by both the frequency with which women pray and self-assessment) is not statistically associated with use of modern reversible contraceptives. However, religious fervour does affect the decision to adopt sterilization as a contraceptive method. In other words, women who report themselves as most religious are less likely to use sterilization as a method of contraception. Female sterilization has always faced the most severe opposition, primarily because doctors who perform the procedure are very often men. It is perceived, therfore, as a violation of the rules of seclusion that prohibit women's contact with non-kin.

Religious leaders voiced early opposition to the aggressive family planning campaign. The most common obstacles to birth control were social ostracization, refusal for burial, and lashings and other sentences imposed by shalish tribunals. As the programme matured, this opposition gradually faded. It is not uncommon, however, for fear of religious reprisals to make women unwilling to accept certain contraceptive services.

The family planning programme has addressed religious opposition through educational programmes for religious leaders. These programs provide information about the need to control population growth and the health benefits of reduced births. Additionally, there have been some concerted efforts to motivate religious leaders to make public pronouncements endorsing the use of family planning. For the most part, these pronouncements are based on liberal interpretations of the Quran. In 1985, in response to a request from the Government's Planning Commission, the Islamic Foundation published a book highlighting these liberal interpretations.

Muslim laws and reproductive issues

The practice of deploying progressive interpretations of Muslim laws in support of state-sponsored family planning programmes has found favour in a number of countries other than Bangladesh. Eminent religious leaders have issued among others these fatwas (religious opinions):

I see no objection from the sharia point of view to the consideration of family planning as a measure, if there is a need for it, and if the consideration is occasioned by the people's choice and conviction without constraint or compulsion, in the light of their circumstances, and on the condition that the means for effecting this planning is legitimate.

There is agreement among the exponents of jurisprudence that coitus interruptus, as one of the methods for the prevention of childbearing, is allowed. Doctors of religion inferred from this that it is permissible to take a drug to prevent childbearing, or even to induce abortion. We confidently rule in this fatwa that it is permitted to take measures to limit chilbearing. (And the grounds on which contraception was considered permissible included economic, social, and medical factors).

Many jurists, however, rejected sterilization as a means of acceptable contraceptive practice, despite the absence of any prohibition on sterilization in either the Quran or the Hadith. Some jurists have pointed out that sterilization should be allowed in the absence of any specific textual prohibition, particularly because "the preservation of reproductive power was not one of the obligations under Islamic Law".[4] In practice, in countries with significant Muslim populations, sterilization has been made illegal only in Iran and Saudi Arabia and is allowed in Egypt, Tunisia, India and Bangladesh.

In contrast to the relatively liberal position that jurists take on the issue of contraception, the juristic interpretation of the right to abortion has been more limited. For every school of interpretation except one, abortion is prohibited, except to save the mother's life, after the ensoulment of the fœtus. Ensoulment of the fœtus is considered to occur 120 days from conception. Jurists differ, however, as to whether and when abortion is permitted prior to ensoulment. The Hanafi school, which prevails in Bangladesh, permits abortion with justification before ensoulment. Several countries with a majority Muslim population have legislation permitting abortion within the first trimester, on the grounds of saving the woman's life, or for reasons of maternal health, or on any grounds whatsoever.

Furthering reproductive rights

Given the liberality and range on interpretation of Muslim law on reproductive issues, any attempt to identify "a fateful triangle model that sees an inevitably ill-fated association between Islam, women and demographic outcomes"[5] appears doomed at the outset. Similarly, any attempt to assert a monolithic and restrictive view of the "Islamic position" on reproductive rights would be misleading.

While the framework of Muslim laws permits the development and operation of family planning programmes, it remains unclear whether the framework of Muslim law alone can ensure women's reproductive rights. In contrast to other religious laws, Muslim laws are premised on the need to encourage marriage for all members of the Muslim faith. Muslim laws also assert that both parents in a marriage have a right to sexual enjoyment. In spite of such provisions, however, and while Muslim law may condone family planning, the notion that a woman may, for her own reasons, choose to adopt a contraceptive method is derided.

More importantly, personal laws that regulate rights within marriage in many Muslims countries establish a framework that denies women equality and inhibits them from exercising their right to self-determination within the family. In particular, in the South Asian context, it has been argued that the combination of men's right to polygamy or unilateral divorce and women's lack of alternatives to marriage, restrains women from exercising the choice not to bear children. In this particular social and economic context, a woman's sole safeguard may be her ability to give birth to sons.

Moreover, traditional interpretations of Quranic verses and other sources of law tend to emphasize the inequality between men and women. While asserting that the introduction of Islam improved the status of women in Arabia, at the time of Mohammed, these traditional interpretations emphasize that Islam sanctions gender inequalities, particularly with respect to rights in marriage, rights to inheritance, and also establishes that one man's evidence is equivalent to that of two women.

The failure to establish that Muslim laws or Islam determine constraints on women's reproductive choices does not mean, however, that Islam or Muslim laws and beliefs are irrelevant with respect to reproductive issues. The powerful ideological influence of Islam ensures its impact on reproductive choices. This has prompted certain women's rights advocates (pre-eminently, Riffat Hassan and Fatima Mernissi) to adopt a strategy of attempting to reinterpret religious texts from a human rights and feminist perspective. They argue that texts used to legitimize women's inferiority should not be relied on outside their historical context, but instead be seen as limited to a particular historical context, and, therefore, subject to reinterpretation in an evolving society.

While such reformists strategies, which clearly situate themselves within the parameters of a religion, are useful for any community, their limitations need to be addressed. Reformist reinterpretations are unlikely to be accepted by religious leaders, and can offer no solutions across religious groups. A more effective strategy for establishing women's reproductive rights would ground such rights within an appropriate framework that takes into account, not only Islam and Muslim laws, and their varying interpretations, but also the specific cultural and political contexts of any society, and is based on a bedrock of universal human rights standards.

The fundamentalist challenge

The women's reproductive rights movement has faced challenges from all religious orthodoxies, as well recent religious fundamentalist movements. Otherwise pitted against each other politically, religious fundamentalists, of whatever hue, appear to share a common agenda regarding the control of women's rights.

Interestingly, while Muslim fundamentalists have not directly threatened family planning programmes, they have reacted strongly to the assertion of women's reproductive rights within the context of such programmes. In this effort to challenge the ability of women to assert their reproductive rights, fundamentalist groups have sought to impose a monolithic and repressive interpretation of religious laws and religious views.

For example, Moududi, a Pakistani religious leader, and founder of one of the leading Muslim fundamentalist parties, who was firmly opposed to family planning, selectively cited religious texts to support his claims that birth control was anti-Islamic conspiracy, and that the introduction of faimly planning in developing countries would result in "the breakdown of the family and sexual promiscuity" and in women giving up their traditional roles.[6]

More recently, the Cairo Conference saw a coalition of Christian (led by the Vatican) and Muslim fundamentalists attempting, and succeeding in part, in restraining the affirmation and elaboration of women's reproductive rights. They strongly opposed the terminology used in the chapter of the International Conference on Population and Development (ICPD) Programme of Action entitled Reproductive Rights and Reproductive Health and a small number of Muslim countries also opposed the language on women's empowerment. While some countries accepted the need for post-abortion counselling and care (including Bangladesh), the Programme of Action itself stated that no changes could be made regarding abortion law except by national legislatures.

An indicator of how fundamentalists will take up the challenge of Cairo domestically may be gauged by the following comments: "We do not accept the concept of a single parent family or the concept of a family in its plurality of forms…". This commentator also appears particularly opposed to the provision of reproductive health care and information to adolescents and men. He argues that acceptance of these proposals would result in:

a society in which extra-marital sex will be socially and legally permissible. Parents will have no control over their children. This has been prevalent in the West for the last half century and this has led to immoral behaviour, sexual anarchy, sexually transmitted diseases, more crimes, and more particularly, sexually related crimes.

In conclusion, he asserts: "As far as Bangladesh is concerned these offending clauses of the document offend our religious feelings, our culture and above all our civilization… to agree to such a proposal would be… unconstitutional".[7]

Muslim fundamentalists thus deny more liberal interpretations of Muslim laws and foreclose the possibility of any further progressive interpretation. In seeking to impose an extremely authoritarian version of the sharia on an entire society, fundamentalists reveal their essentially autocratic agenda. Any attempt by an individual to assert her own sovereignty or right to self-determination is viewed as a challenge to the prevailing order. The combination of the individual and collective demands of women for social justice, explicitly insisting on a change in the distribution of power, may in this context provoke a violent response.

Attacks on sexual and reproductive rights

It is in the context of rehabilitation of fundamentalists in Bangladesh, despite its secular constitution, that the attack on women's sexual and reproductive rights has been launched. This increasing visibility of women in both urban and rural areas, prompted by women's employment in the garments sector and the activities of development organizations, has acted as a catalyst for such an attack.

The fundamentalists chose as their first target single women identified as having transgressed social norms. In a series of cases, fatwas were issued by imams or madrassah principals, accusing women of zina (adultery/fornication), and sentencing them to punishments such as stoning, caning, and, in one particularly horrifying case, burning at the stake. Three women have died in such incidents. Other women who were accused by fatwas now face social ostracization. In each case, the fatwa was issued in the context of a shalish. A centuries-old method of alternative dispute resolution, the shalish is traditionally called upon to negotiate and mediate family or land disputes or petty criminal matters. Its judgements are usually accepted by both parties.

In the case described below, shalish authorities stepped far beyond their traditional bounds. Invariably composed of community and religious elders, the shalish tried and convicted women for acts that do not constitute offenses under Bangladeshi criminal law and sentenced them to punixhments that also are not provided for by the prevailing law.

Dulali's case

In one case, Dulali, age twenty-five, became pregnant during an extra-marital relationship with Botu, another resident of her village. On discovering her condition, her family arranged her marriage to another man. Her husband, on confirming his suspicions that she was pregnant, however, divorced her. Dulali's family then reportedly called upon local elders to hold a shalish in the matter. At the shalish, Dulali was accused of zina and sentenced to be caned 101 times, to be administered seven days after the delivery of her child. No accusation was made against Botu, the man involved.

The execution of the sentence was pre-empted by the intervention of national women's organisations and the consequent presence of the police in the village on the day appointed for the caning. Subsequently, all locals denied the shalish, the fatwa, and the sentence. Dulali is no longer able to live in the village.

Trial by shalish, as in the above case, is clearly illegal. Shalish authorities have invariably invoked the sharia during these trials, although religious law is not applicable to criminal matters in Bangladesh. Shalish have no jurisdiction to hold trials for zina, which is not a criminal offence under Bangladeshi law. Although these shalish cleraly violate the fundamental right to life and personal liberty, and the right to protection of the law, the failure of the State to respond promptly in each case has enabled perpetrators of such violence against women to escape with impunity.

Young women have been targeted by the community, led, in particular, by religious leaders, for having transgressed social and sexual norms. The risk of exposure and the lack of information combined to ensure that the options of contraception or abortion, which could have pre-empted the shalish and its ensuing consequences, were not available.

The focus of fundamentalist attacks shifted in their second phase to development organizations. Both the staff and the beneficiaries of a number of development projects faced threats of violence and criminal intimidation. Non-formal primary education schools, in which a large number of girls were enrolled and which provided secular education, were burned to the ground. Women receiving health care from NGOs were warned to boycott such organizations and were threatened with divorce if they failed to abide by such injunctions. Attacks continued to be targeted at sterilization programmes, with women who adopted sterilization being socially ostracized or refused religious burial rites.

The backlash effect

Religious opposition to reproductive rights, in the wake of Cairo, has been identified as being fuelled by extremist groups and fundamentalists. Such opposition appears to be based, not on religious considerations, but rather on purely political considerations. Thus, fundamentalists are unable to provide any clear or comprehensive theological justifications for their position. They are compelled to attempt to whip up fears of disintegration of social and moral order resulting from the application of reproductive rights.

Despite a steady trend of Islamization of the Bangladesh Constitution since independence, some far-reaching legislative interventions have been made, at times wholly at odds with the position under sharia, and judicial interpretations have in certain instances also interpreted sharia wherever possible, to allow for more equitable resolutions. In contrast, the failure to legislate in the arena of women's reproductive rights effectively allows for the enforcement of such rights to be determined by community bodies solely on the basis of tradition or custom. In extreme situations, this, combined with the denial of information regarding reproductive health care and the lack of any access to such care, can result in situations such as those facing the fatwa victims described above.

The recent reaffirmation of reproductive rights at the Cairo Conference, combined with the existing legal foundations in international human rights law, as well as in the Constitution, provides an unassailable framework for women's rights advocates to press for the enforcement of reproductive rights and freedoms. Specifically defining rights and elaborating their operation through the law is of importance insofar as this establishes easily recognizable and uniform standards to meet certain needs. The challenge for women's rights advocates is to effectively use human rights law and the policy pronouncements at Cairo to establish the rights to reproductive security, health, and self-determination for Dulali, and all other women.

Sajeda Amin is an Associate, Research Division, The Population Council, New York. Sara Hossain is an Associate in the law firm of Dr Kamal Hossain and Associates, Dhaka, Bangladesh, and a member of Ain o Shalish Kendra, a legal resources and human rights centre in Dhaka.

Reproduced with permission from:
Women Against Fundamentalism Journal no. 7, 1995

Women Against Fundamentalism
B.M. Box 2706
London WC1 3XX
U.K.

FOOTNOTES

[1] This is an extract from a longer article published in The American University Law Review, Vol. 44, 1995.

[2] Mernissi, Islam and Democracy: Fear of the Modern World 9 (1993).

[3] Abdur Razzaq, Keynote Paper Presented at the Seminar on the Cairo Conference on Population and Development: Human Rights and Moral Issues, Held by the Centre for Human Rights in Dhaka, Bangladesh (9 September 1994).

[4] Shaikh Hasan Mamun, Rector Al Azhar University, Egypt, 1964, cited in Julie Sachedina, Islam, Procreation and the Law, 16 International Family Planning Perspective 109 (1990).

[5] Carla Makhlouf Obermeyer, Islam, Women and Politics: The Demography of Arab Countries, 18 Population and Development Review 50 (1992).

[6] See, Abdel Rahim Omran, Family Planning in the Legacy of Islam (1992).

[7] Abdur Razzaq, op. cit.