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MIGRANT FORUM IN INPUT FOR UN SR AGAINST WOMEN: MISTREATMENT AND DURING REPRODUCTIVE WITH A FOCUS ON CHILDBIRTH - MAY 2019

INTRODUCTION

Migrant Forum in Asia is a network of grassroot organisations in Asia that work for the protection and promotion of migrant and human . Migrant Forum in Asia (MFA) welcomes the decision of the Special Rapporteur on Violence Against Women to produce a joint general comment on mistreatment and violence against women during reproductive health care. MFA looks forward to providing a contribution to the issue relating to the topic in the context of international migration and particularly regarding domestic workers. In this paper, we have compiled inputs of our members and partners on ground realities of reproductive healthcare practices in several countries in Asia including Lebanon, , Bangladesh, Nepal, , , Japan, and Singapore12.

As an organisation based on migrant rights, MFA would like to expand the scope of this input on reproductive rights beyond service provision regarding healthcare, as the realities faced by migrant domestic workers are far more complex and begin at the country of origin. The paper would be looking at policies and grassroot level activities at the destination and origin country with a perspective of following throughout the migration process.

DISCRIMINATION AT DESTINATION

Migrant domestic workers are arguably contracts, living and working conditions the single most disregarded segment of as well as gender-responsive policies workers in national labour laws of are few and far in between. The destination countries within Asia. While increasing value of the care economy there are specific policies to their deems it necessary for domestic processes and employment workers to be present for long period of

1 The members and partners are: NWWT (India), CMA (Philippines), Unlad Kabayan (Philippines), Our Journey (Malaysia), TWC2 (Singapore), SMJ (Japan), HMISC (Taiwan), Insan (Lebanon), Pourakhi (Nepal), AMKAS (Nepal), BNSK (Bangladesh). time within the living space of the Reproductive health in a employer and are preferred as live-in It formal programmatic manner is often a becomes problematic for the workers service of organizations, themselves when they are made to live- including trade unions, women’s in with the employers and this has organizations, NGOs. primarily been identified as a major loophole where and exploitation Commonly, access to healthcare occurs. depends on the country of destination but also on the circumstances of the The care economy in response to a pregnancy (within marriage, out of growing ageing population has deemed wedlock, rape, etc.). If the pregnancy domestic workers necessary and while was out of wedlock, it can possibly be their demand had been regulated grounds for detention or a case against through recent efforts at recruitment immorality or adultery in the Middle reform, policy and programme East. Accessibility can also depend on decisions in both countries of one’s legal status in the country of destination and origin have been found destination. Even if the female migrant lacking. In many cases, they have been can pay for the medical expense, willfully ignorant of ground realities of hospitals will refuse to admit them abuse that occurs at the place of work, because they consider the thereby dehumanizing the female status foremost. Migrant women who and removing her from find themselves pregnant while in COD accessing her human and labour rights. are often made to return to home country after facing penalties. Returnee Sexual and reproductive health rights female migrants are often preoccupied are usually glossed over in general and with economic and livelihood issues female migrant workers suffer for this. and reproductive healthcare per se is For example, a migrant suffering from considered only if she is pregnant upon dysmenorrhea would prefer not to return. displease the employer and would reconsider approaching medical care Undocumented workers usually avoid due to costly fees and so they opt to access to reproductive health care for endure the pain. fear of arrest/detention. Workers that are caught and detained may either be In most Islamic countries social contact repatriated or give birth while in between male and female who are not detention. Specialized hospital wards married is forbidden and, in some within detention centres exist and civil cases, maybe be considered a crime. In society members recount cases where more open societies there is more women are handcuffed to the hospital social interaction between sexes that bed to prevent them from escaping. often lead to relationships and There are migrant workers who are unwanted pregnancies. Formal/official unaware that babies born abroad must programs and education on be registered with the embassy so there reproductive health in post arrival is still are incidents of children that are non-existent in most CODs. classified as stateless, with no form of because of their fear of the attitudes documentation from the country of and stigma in their own countries about origin and where they were born. such incidents. Both families concerned and the women themselves might Some are forced to bring their children decide that settling the case with in detention centers with them, no monetary compensation to the worker space for children or privacy. If she is and repatriating her is the best way to pregnant and has all her travel proceed. documents she is deported and if she does not have any travel documents Some victims of sexual abuse often she will be made to stay till documents experience further abuse because are prepared. If childbirth has to be access to justice is too expensive for there it is taken care of and mother and them as well as facing possible child remains in the shelter or jail till bias/racial against the they are deported. victim.

In exceptional cases, such as victims of MFA would like to stress that with sexual assault/rape or pregnancies regard to migrant women workers, the unwanted by their male partner, women vital action is of removing the risk from continue with the pregnancy. Those work rather than removing the worker who seek care from NGOs and/or from a risky situation, the onus of which religious institutions are able to access falls upon regulatory and monitoring pre and post-natal care. The mothers bodies of labour migration within the are then repatriated back to COO. country of destination. We observe that sexual and reproductive rights of Migrant women who do report sexual female migrants are disregarded from mistreatment or abuse by employer or the time of pre-departure till post-return, sponsor, are referred to public spanning the entire migration cycle. attorneys to handle the case as it is This is further compounded by religious criminal in nature. While the case in and cultural conservatism and being heard, the women are unable to traditional attitudes around sex get a regular job and would be a great education and female reproductive disadvantage to them. It is also difficult rights. This effectively obstructs women to find employers who would sign from accessing reproductive healthcare contracts with them. However, the due to disease and injury or even more challenge is to prove that such an critical situations of pregnancy and assault has taken place, as domestic sexual assault. Lack of comprehensive workers are usually isolated in their gender-sensitive approaches mean employers’ homes. There are no that while domestic workers have outside witnesses and family members access to measures of justice, their lack often support those accused of sexual of freedom of movement, the fear of offences. legal measures and consequent Moreover, migrant victims in particular, or , deter feel hesitant to report sexual abuse them from approaching these routes of deters migrants from pursuing redressal. healthcare. This situation affects Lebanese people but also migrants MFA members and partners continually who are usually confronted with assist cases where the said domestic additional barriers to their access to the worker is suffering from reproductive healthcare system. health issues but without remedy or access to medical treatment. We For migrant women, the Standard observe that the labour system as well Unified Contract, compulsory by law, as local laws and attitudes within forces the employer to contract health destination countries render domestic insurance for the worker - a prerequisite workers incapable of leaving the home for a work permit by the Ministry of of the employer without their Labor. However, generally the permission. We realize that the such insurance policy contracted by the restrictive policies are inherently violent employer only covers work-related to the migrant woman, some of whom injuries and is not accepted by all are inadequately aware of their right to hospitals and private clinics. In most healthcare and associated gender- cases, the worker is entirely dependent based rights. on the good will of her employer to access the healthcare system. It has To ably discuss the differing modes of been observed that regardless of the policies by destination countries, the severity of the ’s health countries observed for this paper are issues, the employer would prefer only Lebanon, Malaysia, Thailand, Japan giving painkillers rather than taking then and Taiwan. The following have been to a medical professional. What is looked into when attempting to expand more, the insurance papers as well as the scope of inputs beyond access to all identity papers of the workers are healthcare facilities: generally kept by her employer, leaving In Lebanon, the topic of reproductive her with no possibility of going to health is in general a taboo for all medical facilities herself. Finally, in women (both Lebanese and foreign). case the worker is taken to a Apart from religious stigma, there is consultation with a medical little to no sexual education and women professional, it is common practice for are generally not informed about their the employer to deduct the amount rights and possibilities in this area, payed to the practitioner from the notably about contraceptive methods. worker’s salary, when the standard Abortion is only legally permitted in one unified contract required the sponsor to very restrictive situation being when the pay for all medical expenses of the life of the mother is threatened. Access worker. to the general healthcare system is If female migrant workers are victims of limited by the fact that the public sexual assault or abuse, the first infrastructure is insufficient to deal with challenge is that, often time, the burgeoning demand. Healthcare run by aggressor is their employer or a private entities are expensive and member of their family (due to their live- and employees should not work for in status as a domestic worker). Then more than 48 hours in one week as they are locked inside the household, they have limited to no • Paid public holidays possibility of accessing healthcare or • Annual leave entitlements seek legal assistance. Such elements lead victims to abscond or run away • Sick leave, and from their workplace. However, then • Termination, lay-off and retirement they are considered by Lebanese benefits. Domestic workers are authorities as ‘irregular’ the territory and excluded from these notice periods and can be subjected to detention and/or for them, there is a blanket 14-day deportation. Usually these women are period of notice of termination, administratively detained at the regardless of length of employment. General Directorate of the General Security Facilities, where they cannot Malaysia’s Workmen’s Compensation benefit from the help or visit of any Act 1952 also excludes “domestic lawyer, although they may be provided servants” from the list of occupations basic healthcare which is inadequate which fall under the category for their needs. “workman”, therefore leaving domestic workers without recourse to Malaysia’s Employment Act 1955 compensation for injury suffered in the explicitly denies domestic workers the course of their employment. Domestic same rights as other workers. The workers and women migrant workers Employment Act contains specific are required to undergo a mandatory labour protections concerning leave pregnancy test at FOMEMA, a and entitlements however, the First requirement to obtain a work permit and Schedule of the Employment Act subsequent renewals of such specifically excludes domestic workers documents. from being covered by the following provisions: Pregnant domestic workers and women migrant workers are classified as • Maternity protections, including leave medically unfit and deported back to and allowance entitlements their home countries. Deportation due (furthermore, employment contracts to pregnancy is also a clause included prohibit pregnancy) in the contract of employment. • One rest day per week In Malaysia as well as Lebanon, • Provisions limiting hours of work, abortions may be carried out by a including specifying that employees doctor 3 only under the following should not work more than five circumstances; that is risk of life or consecutive hours without a period of injury to the physical health of the leisure of not less than thirty minutes woman or risk of life or injury to the mental health of the woman. With

3 Malaysia Medical Act 1971 limited avenues to seek a termination of they are not eligible for healthcare or the pregnancy coupled with the fear of documentation for their newborn child. deportation including social stigma in This becomes problematic with most the host and home countries, migrant workers choosing to return or worse, worker women resort to unauthorized abandon their child or perform a risky abortions risking various medical abortion procedure. complications and long-term effect on their health. The same situations are Thailand allows all migrants, applicable in case the migrant worker regardless of documentation status, conceived in her home state and employment, nationality to access recognized her pregnancy in the healthcare. Pregnant migrant workers destination country – they are can access pre-and post-natal care as repatriated home or asked to pursue long as they are able to pay for it. Their ‘other measures’ to deal with the children are provided with situation. Civil society members documentation and are allowed to recount situations where they access basic needs and services. individually intervene with employers to Migrant female workers are subject to a resolve the issue and allow for the pregnancy test, however, when they worker to have a safe delivery in their apply for a work permit. According to home country and return to continue officials, the test is for medical reasons their work. related to administration of another drug that protects migrant workers from While Taiwan has been observed as disease (particularly elephantiasis, putting forth progressive laws for whose preventive medicine is migrant workers to enable their dangerous for pregnant women). awareness, there continue to be loopholes in the system for female In Singapore, currently, female Work migrant workers. For example, workers Permit holders be subject to pregnancy are given a post arrival orientation at test every six months by law. Anyone the airport itself with sufficient found to be pregnant can remain in information as well contact information Singapore at work until either (a) the of non-governmental shelters in case of 24th week of the pregnancy -- which is abuse. They have further banned the last possible date for legal abortion, pregnancy testing during the or (b) the last "allowed to fly" date of recruitment process while penalizing airlines to her home country, whichever and prohibiting employers from is earlier. female Work Permit holders terminating the contract and deporting suffer penalties for becoming pregnant a migrant worker who becomes while in Singapore. Penalties include pregnant. However migrants, especially immediate cancellation of the work low-skilled female migrant workers are pass and blacklisting against future unaware of their maternity benefits and employment. No employer shall need to grievance system. While female be responsible for the payment of migrant workers are in a sense allowed healthcare provision these unless by to stay in Taiwan during the pregnancy, private contract. However, if the migrant worker encounters an emergency which pregnant trainees were situation during this period, the threatened with dismissal. provision in the law that requires employers to provide "immediate and While we can classify the pre- necessary" medical care to save her life programme training as part of the is allowed for. workers post arrival orientation, we see similar information and modes of Furthermore, it was just in 2013 that awareness adopted for pre-departure domestic workers in Singapore were programs in countries of origin such as allowed to have a day-off once a week Nepal and India. but employers are not keen on this due to the misconception that domestic AT THE ORIGIN COUNTRY workers might get lost, go on dates, or While destination countries are to be have sex. held responsible for the conditions at Japan’s government sponsored the workplace and ensuring specialized technical internship programme has intervention and rights-based treatment also been criticized as being insensitive for domestic workers in particular, to gender considerations and countries of origin are found to be discriminatory to the workers. equally negligent regarding gender- sensitive policies from the point of Technical trainees are required to sign recruitment till after their return. a letter of consent that forbids them from “having any romantic relationship” Countries of origin were found to have and explicitly states that “males and age restrictions in place for recruiting females cannot visit each other’s domestic workers as a response to rooms”. Although this part of pre- abuse and trafficking concerns of training programs, workers are domestic workers – particularly in India reminded that company laws are similar (women over 30), Sri Lanka (25 years and advised not to ‘lose focus’. Certain to Saudi Arabia, 23 years to the other pre-internship training organizations Middle Eastern countries), Nepal (23) even ban trainees from having a and Bangladesh (25). It works upon romantic relationship and can impose a the assumption that female migrants by fine if they become pregnant.4 a certain age are ‘less naïve’, ‘more aware’ or married with children, which Such strict policies have been publicly means they are ‘more likely’ not to be criticized by government bodies such trapped or involve themselves in as the Justice and Labor ministries for prostitution and trafficking activities. interfering the private lives of their Not only are such age restrictions are workers. The Justice Ministry further entirely misplaced as we observe from revealed reports from supporters of grassroot level work, but it also deflects technical interns highlighting cases in the responsibility of the country of origin

4 Asahi Shimbun. “Expectant trainees told to end http://www.asahi.com/ajw/articles/AJ2018120200 pregnancy or leave Japan” (2 Dec 2018). 27.html to educate and generate awareness reproductive health while Section 20 among domestic workers as well as tackles Public Awareness. Before this provide them with critical assistance in issuance, there was no prior destination countries. comprehensive sex education in the country. The closest means to a form of At the start of the recruitment process, sex education would be the pre- migrants are asked to undergo marriage counseling, family planning, health/medical examination prior to and responsible parenthood seminars employment and deployment overseas that is required for couples who want to either by the destination country or to get married in the Philippines, although determine them eligible for this is not being strictly enforced. The employment. While it is primarily topic of HIV/AIDS is included in Pre- intended to ensure that they are Deployment Orientation Seminar physically fit to work, female migrants (PDOS) but insufficient and not are additionally made to take a consistently discussed. RA 10354 is the pregnancy test. most comprehensive on reproductive Based on the inputs from MFA health but does not make specific members and partners, it is understood provisions for migrant women. that in almost all origin countries, The following laws contain provisions female migrants are poorly informed, if on reproductive or marital status of at all, about reproductive and sexual women migrants, as women or as a health. Due to conventional attitudes general category of migrant women: around reproductive health and sex education, such topics are not • RA 9710: Magna Carta of considered integral to the standard Women – Section 4.c.5 defines topics of pre-departure and pre- and identifies migrant women as employment orientation. In fact, women one sector. Section 17 refers to migrants undergoing pre-departure women’s right to health- orientation are given a list of “don’ts” comprehensive health education regarding contact with the males and and services. RA No. 9710 not given enough awareness regarding covered key elements to protect risks of sexual assault or harassment. women and children (especially girl-children) in all aspects but It was only in 2018 that the does not provide specific Philippines’ Department of Education provisions that would address issued Policy Guidelines regarding the the issues affecting migrant Implementation of the Comprehensive domestic workers including Sexuality Education (CSE) otherwise children specific to reproductive known as DepEd Order No. 31. This or marital/sexual status when was in accordance to the Responsible deployed. Parenthood and Reproductive Health • RA 8042: Magna Carta for Act of 2012 (RA 10354) and in Section Migrant Workers. 4 (q) paragraph 7, it refers to education and counseling on sexuality and • RA 9262: Anti-Violence Against hindered and convince the female Women and Children (Anti- migrant to accept compensation and be VAWC) repatriated. Few embassies provide • RA 9208: Anti trafficking in documentation for children born in Persons destination countries, unless in situations of return and repatriation of Nepal, India, Bangladesh and Sri the victim. Lanka have ratified or are a signatory to CEDAW where GR 26 is specially Finally, returnee female migrants (who introduced to protect the were victims of sexual abuse or of migrant domestic workers, making pregnant/have a child conceived in the governments of the countries of origin, destination country) are fundamentally transit and destination accountable. disregarded in programmatic and police Despite this, all 4 governments have measures in the countries of origin. This not created a stable, non-reactive and is particularly problematic as compared comprehensive policy regarding the to other returnee migrants, this gender-based rights for domestic particular category of female migrants workers. are subject to extreme physical, mental and sexual mistreatment and stigma, In Nepal, due to a recent ban on upon return. deployment, female migrants still travel as undocumented workers with the Based on inputs received for the support of local agents, due to which purpose of this paper, cases of returnee they do not have the opportunity to female migrants suffering from sexually attend pre departure orientation transmitted diseases or returning training. Bangladeshi and Indian pregnant due to sexual assault or embassies at countries of destination returning with an unwanted continue to cooperate with local pregnancy/child are rampant. In some diaspora organizations regarding situations, all these situations are issues of domestic workers and provide combined, and the child born will also temporary shelters for them till they are suffer from the same disease repatriated. Temporary shelters in (particularly HIV/AIDS). Moreover, embassies, however, do not have since they are deported back home with exclusive provisions for such cases the baby, reintegration into their family except for taking the pregnant migrant and society with an ‘unwanted’ child is worker or victim to hospitals or other extremely difficult, as is the prejudice services. In cases of sexual assault and against victims of sexual assault. trafficking, female migrant workers Female migrant workers are observed have to follow procedures of the turning to depressive and suicidal destination country through legal tendencies and in some cases, facing recourse, etc. Embassies in such cases severe mental trauma. do provide legal assistance but due to We observe that almost all countries of resource and personnel constraints, origin (considered for this input) are yet their ability to follow such cases are to develop coherent policy decisions (instead of reactive ones such as value unpaid care and domestic work banning deployment of domestic through the provision of public services, workers) regarding female migrants. infrastructure and social protection Furthermore, there is scant regard and policies…” as well as goal 5.6 which a of silence around reproductive aims at ensuring “universal access to health and sexual abuse, which leaves sexual and reproductive health and migrant women vulnerable to further reproductive rights as agreed in forms of exploitation and at the mercy accordance with the Programme of of a policy environment that is Action of the International Conference intrinsically violent against women and on Population and Development and migrant rights. the Beijing Platform for Action”.

Dehumanisation or a process of ‘de- Under the Global Compact on feminisation’ of the female migrant Migration, Objective 4 is to “ Ensure hence begins at the country origin, that all migrants have proof of legal where the workers rights to identity and adequate documentation”, reproductive healthcare, awareness of under which target (e) aims at reproductive health, and “strengthening measures to reduce comprehensive support mechanism for statelessness, including by registering victims of sexual assault and their migrants’ births, ensuring that women children are disregarded in the larger and men can equally confer their interest of her being a ‘worker first, nationality to their children, and woman second’. providing nationality to children born in another State’s territory, especially in

situations where a child would otherwise be stateless, fully respecting RECOMMENDATIONS FOR the human right to a nationality and in PREVENTION OF VIOLENCE AND accordance with national legislation”. ENSURING REPRODUCTIVE AND Objective 7 aimed at addressing MATERNAL RIGHTS OF FEMALE vulnerabilities in migration also has MIGRANTS target (d) which stresses states to “review relevant existing labour laws and work conditions to identify and effectively address workplace-related Recognizing gender-specific and vulnerabilities and of migrant migrant-specific rights of migrant workers at all skills levels, including domestic workers have been enshrined domestic workers, and those working in in international covenants such as the the , in cooperation Sustainable Goals of Development as with relevant stakeholders, particularly well as the Global Compact on the private sector”. Migration. Objective 6 which is focused on ethical Sustainable Goals of Development recruitment and decent work observes have specific goals 5.4 which under target (k) to “review relevant emphasizes states to “recognize and national labour laws, employment The Convention places the onus on policies and programmes to ensure that employers and governments to share they include considerations of the the above responsibilities by provision specific needs and contributions of and connecting it to a social security women migrant workers, especially in fund or schemes of social insurance for domestic work and lower-skilled the female migrant worker. None of the occupations, and adopt specific countries whose inputs have been measures to prevent, report, address included as part of this paper have and provide effective remedy for all ratified or recognized this convention. forms of exploitation and abuse, including sexual and gender-based violence, as a basis to promote gender- Specific recommendations include: responsive labour mobility policies”. I. Countries of Origin As MFA, while we agree to the right of a. To include gender-sensitive labour mobility and gender-responsive and progressive education action regarding the same, we would and awareness on like to emphasize that reproductive and reproductive and sexual sexual rights to healthcare and health as a mandatory part of awareness is imperative in the pre-departure training for discourse prior to the consideration of potential female migrants. mobility of female migrant worker. b. Including female domestic C183- Maternity Convention 5 also migrant workers as a group protects against pregnancy requiring specialized policy discrimination but contains even more and programme initiatives specific provisions than CEDAW. The beyond recruitment Convention prohibits pregnancy testing processes for women applying for employment, c. Ensuring gender prescribes at least 14 weeks of sensitization training for maternity leave, including a period of embassy and shelter six weeks compulsory leave after personnel in dealing with childbirth, and includes specific migrants workers that are provisions that ensure that women pregnant, have a child and/or receive cash and medical benefits to are victims of sexual assault meet their financial and health needs d. Embassy involvement in during the maternity leave, that include ensuring provision of “prenatal, childbirth and postnatal care, reproductive healthcare for as well as hospitalization care when migrant worker in countries necessary.” of destination rather than only assisting in their deportation/repatriation

5 Fair Labour Association (2018). “Triple Preventing Pregnancy Discrimination among Discrimination: Woman, Pregnant and Migrant: Temporary Migrant Workers”. e. Appoint or create space for a d. Allowing for migrant female officer/staff at the embassies workers to safely give birth in that is responsible for the country of destination, at issues of female domestic least 6 months into their workers and victims of sexual pregnancy. assault and violence. e. Formulation of strict policy to f. Legal redressal for victims of penalize those accused of sexual assault and sexual assault of the migrant assurance of documentation worker as well as ensuring for the child born in separation of immigration destination countries. status/work permit and the g. Specialized and tailor made maternity/healthcare rights of programmes for returnee the migrant female worker. female migrant workers f. Establish a critical reporting enabling reintegration, system regarding such provision of mental and cases. physical healthcare with the

involvement of civil society organisations. h. Establish reporting and monitoring system specifically for issues pertaining to female domestic workers.

II. Countries of Destination a. Ensuring gender sensitization training of police, immigration and hospital personnel in dealing with issues of sexual assault, pregnancy and reproductive health. b. Including information of reproductive healthcare and rules of social contact in post- arrival orientation (as seen in Taiwan). c. Providing ease of access to healthcare and justice in cases of sexual assault and unwanted pregnancy, regardless of immigration /employment status.