By : Meghana Narayanan

Abstract:

This article explores how the commodification of women’s health products, driven by patent protections, restricts access to essential hygiene and medical innovations. Patents, as social instruments, shape public perception and the quality of women’s health products, often facing limited resistance due to the dismissal of women’s pain and needs. However, necessity-driven innovation challenges corporate dominance, with grassroots solutions emerging to bridge healthcare gaps. Addressing these issues requires policy interventions such as eliminating futility patents, implementing competition-driven pricing, and leveraging human rights frameworks to ensure equitable access to women’s health products.

Introduction

One in ten girls below the age of twenty-one—a staggering, yet unsurprising statistic that highlights the number of girls in India who cannot afford access to essential women’s health and hygiene products. In today’s highly capitalist economy, the commercialisation of these products, through protective mechanisms such as patents, makes such statistics an expected consequence. This article argues that patents in women’s health products shape dominant societal perceptions while limiting access to necessities, and critically analyses their functioning as instruments of social change. 

The Commercialisation of Women’s Health

Historically, medical research has focused on male subjects, leading to innovations that overlook women’s specific physiological needs. Recognising this gap in the market, entrepreneurs have ventured into the female health space to establish their presence. Given that women make up nearly half the world’s population, the potential market size is vast, with reports suggesting that the FemTech market will grow to $50 billion globally by 2025. 

However, innovation in this sector is often driven by lucrative opportunities rather than a genuine commitment to improving women’s health. In this framework, patents act as legal protections that grant inventors exclusive rights over their innovations, allowing them to commercially exploit their creations while preventing others from using, making, or selling them without authorisation. Patents are frequently granted for women-specific products, including menstrual products, biomarkers for detecting diseases, and companion diagnostics. Additionally, even newly discovered uses for existing products can be patented. As a result, nearly every aspect of women’s health products falls within the realm of commercial exploitation, leading to exorbitant prices, limited alternatives, and restricted access to essential products. 

This tussle between an individual’s ‘moral and material interests’ in their intellectual creations versus the public’s right to gain access to critical resources is a key question that occupies much of intellectual property discourse. As such, it is important to analyse the impact and functioning of these patents in order to strike a fine balance between the two competing rights. 

Patents as Instruments of Social Concern

Patents don’t act as mere legal assets, but are important instruments in addressing social complexities, hence operating as ‘vehicles of social and moral concerns’, and shaping public perception on women’s health issues. A study on various patents issued over the years to Johnson & Johnson for their sanitary pads highlights how patents view women with ‘detached concern’, perceiving the woman as a mere set of organs that the product must fit, and not as a person. As a result of this narrow perspective, feminine hygiene products were rarely tested with genuine consideration for how they would actually be utilised by women. For instance, the absorption capacity of the pads was often tested using fluids such as water, rather than fluids akin to the menses, underscoring the minimal concern for the realities of the female biological process. The goal was evidently mere legal protection for the product, which in turn, would lead to the ability to commercially exploit the product. Furthermore, words related to the menstruation process, such as ‘blood’ and ‘women,’ rarely featured in patent applications, in order to broaden the product’s applicability and increase its chances of securing legal protection, despite being designed specifically for women. This approach legitimises exclusivity and reinforces the idea that women’s health innovation is only valuable when it is commercially controlled. 

Under the guise of the ‘novelty’ requirement to secure new patents, companies have also resorted to superficial alterations in existing products, such as adding features like disposability to sanitary pads, which rely on chemicals with long-term effects on both women’s bodies and the environment. This demonstrates a clear disregard for physiological, social, and environmental implications. Research shows that many new products entering the market, marketed as ‘safe’ and ‘organic,’ are significantly more expensive and carry a higher risk of Toxic Shock Syndrome. A 2021 Life Cycle Initiative report also revealed that single-use menstrual products are made up of nearly 90% plastic, and are a major environmental concern. Recent menstrual products, such as sanitary napkin disposal bags, also highlight how patents in menstrual products often lack genuine innovation. Marketed as a solution to the “problem” of menstrual waste, these bags—essentially just small containers for used products—have been granted nearly fifty patents, despite offering no real novelty. This reflects how patents in this field thrive on manufactured needs, focusing on repackaging and reselling basic solutions, rather than true advancements in women’s health. 

The Systemic Undervaluation of Women’s Health Needs

Granting patents for pharmaceutical and medical innovations is often met with resistance, as was seen during the COVID-19 pandemic, when the international community pushed for patent waivers on vaccines to enable global access and local production. However, this same sentiment has rarely been extended to women’s health products. This disparity may be better understood by examining the structural issue of how society perceives women’s pain and health, often dismissing them as less urgent or significant. 

Pain and suffering in women, whether from menstruation or gynecological procedures, is often perceived as inevitable—something ‘natural’, rather than a problem that needs solving. It is often overlooked, not just in everyday interactions, but within medical and legal systems that fail to take their suffering seriously. This disregard stems from what philosopher Miranda Fricker calls a “credibility deficit”—a societal tendency to see women as unreliable narrators of their own experiences. Stereotypes cast them as overly emotional or irrational, making their reports of pain and discomfort less likely to be believed. 

As a result, innovations aimed at alleviating women’s pain, or making female biological processes less inconvenient, are not always seen as necessities but rather as optional benefits, or luxuries. This perception can be used to justify the commercial exploitation of such products, as they might not be categorised as treatments for critical conditions that would qualify for patent waivers. This is important in light of phenomena such as the ‘Pink Tax’, wherein essential women’s health products are often taxed at the same rate as luxury items, placing an additional financial burden on women in comparison to men, thereby limiting their purchasing power.

However, this classification is deeply flawed. Menstrual hygiene products, for instance, are fundamental necessities. The lack of access to these products doesn’t just mean discomfort, it can also lead to severe health risks, including infections and medical complications. Recognising women’s health products as necessities rather than optional conveniences is crucial to ensuring accessibility and preventing further harm. 

Necessity-Driven Innovation: A Challenge to Corporate Dominance

Despite the dominance of large corporations in the healthcare industry, a new wave of innovators is emerging with a genuine commitment to improving women’s health accessibility. These individuals and smaller enterprises are often driven by necessity rather than profit. This Necessity-driven innovation arises when individuals create solutions to address urgent, real-world challenges. Unlike those who exploit intellectual property for financial gain, these entrepreneurs emerge in this space out of need—whether due to job loss, financial instability, or personal obligations—using innovation as a means of survival and societal progress.

A prime example is Arunachalam Muruganantham, widely known as India’s “PadMan,” who created affordable sanitary pads using locally sourced cotton, motivated by his wife’s inability to afford mainstream sanitary pad options. Unlike major corporations that test absorption using water, Muruganantham prioritised real-world accuracy by using real blood. His innovation was designed to function without electricity, making it easy to replicate and sell at a fraction of commercial prices. Remarkably, he chose not to patent his invention, instead encouraging others to adopt and improve his methods. Thanks to his advocacy, over 4,000 small factories across India now produce affordable sanitary pads, each tailored to local branding and languages.

Elsewhere, in Uganda, Lydia Asiimwe, an entrepreneur, recognised that many girls were dropping out of school due to a lack of access to sanitary products. To address this issue, she developed EcoSmart Pads, an affordable and environmentally friendly alternative made from sugarcane fiber transformed into fabric. Unlike Arunachalam Muruganantham, Asiimwe advocates for intellectual property protection, highlighting its benefits in safeguarding innovations. In this case, patents serve a crucial role—they prevent large corporations from appropriating her idea, patenting it under their name, and restricting access to the very communities it was designed to help. 

Both approaches—open-source innovation and intellectual property protection—demonstrate that necessity-driven entrepreneurship can create lasting social impact, ensuring that women’s health solutions remain accessible and sustainable.

Conclusion: The Way Forward

In conclusion, women’s hygiene products are often created keeping in mind patent rhetoric, rather than genuine concern for female health. As such, women’s right to health, including access to medicines and hygienic products, must be recognised as a fundamental human right. States have a duty to ensure that the grant of patents does not create barriers to these essential products, which can be done through creating legal exceptions within existing intellectual property frameworks. Another key solution to addressing the imbalance in the patent system is to reassess and eliminate “futility patents”—those that contribute little to human welfare yet enjoy strong legal protections. Many patents granted in the women’s health sector, particularly for minor modifications of existing products, serve more as commercial tools than as true innovations. By making such patents easier to challenge and invalidating those with no real benefit, medical firms would be incentivised to develop products that genuinely improve health outcomes rather than simply maximizing profits. 

The women’s health industry needs innovators who are truly committed to addressing unmet medical needs—those who prioritise meaningful advancements over profit and work towards developing solutions that improve women’s well-being, accessibility, and quality of life.

Author’s bio

Meghana Narayanan is a third-year BA LLB (Hons.) student at Jindal Global Law School. Her interests include Intellectual Property Rights, examining the intersection of law and gender, and analysing how corporate structures shape women’s rights.

Image Source : https://www.swissinfo.ch/eng/science/innovation-in-women-s-health-comes-in-small-doses/46302328