Reproductive Rights

“Reproductive rights” let a person decide whether they want to have children, use contraception, or terminate a pregnancy. Reproductive rights also include access to sex education and reproductive health services. Throughout history, the reproductive rights of women in particular have been restricted. Girls and women today still face significant challenges. In places that have seen reproductive rights expand, protections are rolling back.

The termination of pregnancy was termed to be the murder of the foetus. But due to changes in technology, nowadays the right has been legally sanctioned by most nations after the landmark decision of Roe vs Wade[1], by the US Supreme Court. It was the first time where a woman was given the right to terminate her pregnancy.

Abortion laws rely essentially on deciding when life begins and societies will always debate this. At what point does the foetus’ life become worthy of protection? After how many months is it justified to restrict a woman’s right to MTP? There is no one answer and proponents of anti-abortion laws, who believe that life starts at fertilisation, have just strong an argument as people who believe it does not.

That is why we need laws. They do not always reflect the values of a society but in the presence of uncertainty, laws have to provide a framework within which people can navigate knowing with certainty what is legal and what is not. This makes the point that the limit can be seen as arbitrary but it is necessary. This is not a reflection of what is right and what is wrong. In the case of abortion, legislators have decided on a certain time frame. For some countries it is 12 weeks, for India, it is now 24 weeks.

Millions of women around the world rely on a range of solutions to abortions, ranging from expensive private clinics to quacks. Unwritten and unsaid prejudices follow them from menstruation through pregnancies to menopause, in most cases without any legal or family support. The amendment has ended one set of uncertainties. A rollback is not possible and that is a major step for women.

Right to Health and to Live with Dignity

The right to abort certainly falls under Article 21 of the Indian Constitution as does the right to dignity and make free choices when they interfere with current procedures of law. The women equally enjoy the right to life and make free choices upon what she wants to do with their body as any other citizen of India. In the famous case of Maneka Gandhi v/s Union of India[2] the Supreme Court held that the right to life is not merely a physical right but also includes within its ambit the right to live with human dignity.

Similarly in Sarmishta Chakraborty v/s Union of India[3] the court held that the right of women to have a reproductive choice is an integral part of her personal liberty as enshrined under Article 21 of the Indian Constitution. She has the sacrosanct right to have her bodily integrity.

In Kumari D v/s State of Karnataka[4] the court has held most commendably that the right of a woman to exercise her reproductive choice is a dimension of personal liberty as understood under Article 21 of the Constitution of India and she has a sacrosanct right to have her bodily integrity protected.

It is extremely gladdening to learn that the Karnataka High Court in a learned, laudable, landmark and latest judgment titled Kumari D v State of Karnataka in W.P. No. 104344/2021 (GM-RES) delivered just recently on November 17, 2021, has held most commendably that the right of a woman to exercise her reproductive choice is a dimension of personal liberty as understood under Article 21 of the Constitution of India and she has a sacrosanct right to have her bodily integrity protected.

The Court was dealing with a case where the medical practitioner had refused to terminate the pregnancy of a 16 years old rape survivor, as it had crossed 24 weeks as set down in Section 3 of the Medical Termination of Pregnancy Act, 1971. The petitioner had approached the court urging that she cannot be forced to carry the burden of crime and cannot be compelled to deliver a baby which has been conceived against her will. The Court rightly endorsed her valid contentions!

Right to Refuse Medical Treatment

The Supreme Court has held that adults have the right to personal autonomy in matters relating to their own medical care. Adults, as long as they are competent to understand their decision, have the right to refuse medical treatment, even life-saving medical treatment, though a state may require clear and convincing evidence that a person wanted treatment ended before it allows termination.

A state may restrict family members from terminating treatment for another because this right belongs to each individual. The court has not extended this right to allow physician-assisted suicide.

Women undergo various physical and mental health issues during pregnancy, sometimes to cure such health issues medical treatment of pregnancy is vital keeping in view the health problems of women. Article 21 has given women the right to health by which women can decide whether to retain or terminate their pregnancy.

Right to Privacy and Personal Liberty

Termination or retention of pregnancy has been recognized under the right to privacy under the Constitution of India. The Justice K S Puttswamy (Retd.) v/s Union of India[5] judgement has explicitly recognized the constitutional right of women to make reproductive choices as a part of the right to privacy under Article 21 of the constitution.

The landmark judgement of Suchita Srivastava v/s Chandigarh administration[6], held that reproductive rights include a women’s entitlement to carry a pregnancy to its full term to give birth and subsequently raise children and that these rights are part of women’s right to privacy, dignity and bodily integrity. It was further stated that reproductive autonomy is a dimension of personal liberty.

2017 has been a big year for constitutional development in India. In a historic and landmark decision, a 9-judge bench of the Supreme Court pronounced that the right to privacy is a constitutional right which is not only rooted in the right to life and liberty but also enshrined in all other fundamental rights, including the right to equality and the fundamental freedoms.

Specific references to the protection of one’s sexuality, sexual orientation and gender identity were made as being part of one’s intimate life choices that need to be protected under the rubric of privacy.

The Court referred to several key decisions around women’s autonomy over their bodies and sexuality as part of the right to privacy, including the right of women to work at night, protection of reproductive rights, the right to bodily integrity, the rights of unwed mothers, the right against forced sterilization and the right to decide on marriage, procreation and the choice of family life. These, the Court held, were matters of one’s most intimate and personal choices and essential in the pursuit of happiness, which is founded upon autonomy and dignity.

The Court also declared that the right to sexual orientation and gender identity were inherent in the right to life. Justice Chandrachud went as far as to hold that the Court’s previous reasoning in Suresh Kaushal[7] was flawed and held that “a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy.

Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life do not accord with the ‘mainstream’. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties.

It held that the rights of the LGBT community were inherent in the right to life and constitute the essence of liberty and freedom. It held that “sexual orientation is an essential component of identity” and that “equal protection demands protection of the identity of every individual without discrimination.”

The judgment is fascinating in the way in which several judges refer to the right to gender identity and other rights relating to one’s intimate life in a very outspoken manner. J. Bobde held that the right to privacy is confined not only to intimate spaces such as the bedroom or the washroom but goes to a person wherever he or she is. It is interesting that these issues have been addressed by the Supreme Court because washrooms and toilets are the sites where current battles for recognition of the rights of the trans communities are being fought and could pave the way for the future.

Restrictive abortion laws violate women’s right to equality enshrined under Article 14 of the constitution. Women have equal rights with other citizens of the country and pregnancy may curtail some of the equality rights such as women cannot work a lot during the pregnancy period, she cannot travel, may lose some opportunities, assured by Article 14 the right to equality of women having a reproductive choice which is a fundamental thing cannot be overshadowed.

The Medical Termination of Pregnancy Act 1971

There are some provisions under this act, which give every woman the right to choose, whether she wants to be a mother or not. On the one hand, this act gives legal rights to women for abortion, to those, who are not ready to become a mother and on the other hand, this act restricted the termination of pregnancy in some situations.

Under section 3(1) of the act, a registered medical practitioner shall not be held guilty of any offence under the Indian Penal Code, if any pregnancy is terminated by him under the following circumstances:-

(a) Termination is within twelve weeks of conceiving.

(b) Pregnancy can be terminated between 12 to 20 weeks with the opinion of minimum two registered medical practitioners, in good faith and in the following situations:-

1) If such pregnancy involves any risk to the life of the pregnant woman, physically or mentally.

2) In case of any substantial risk that the child will be born with physical or mental abnormalities.

Sub-section (4) elaborates upon the consent required for a pregnancy to be terminated:-

      (a) Pregnancy of a woman, below the age of eighteen years or of a person with unsound mind must be terminated with the written consent of her guardian.

       (b) Those who don’t come under (a), in that case, pregnancy shall be terminated only with the consent of the pregnant woman.

Section 4 of this Act says that the pregnancy can only be terminated in a hospital established by Government or only in such place which is approved by the Government for this purpose.

Section 5 of the act talks about the situations, where Sections 3 and 4 cannot be applied.

According to Sub-section (2), a punishment with rigorous imprisonment for a minimum of two years extendable to seven years can be given under IPC to a person if the termination of pregnancy is done by any such person other than a registered medical practitioner.

Sub-section (3) declares if any person terminates any pregnancy in a place not in accordance with section 4, shall be punishable with rigorous imprisonment for a minimum of two years but extendable to seven years and the owner of the such place shall be punishable with rigorous imprisonment for minimum two years extendable to seven years under sub-section (4) of section 5.

The object of this Act is to legalize abortion and offer protection to medical practitioners who otherwise would be penalized under Indian Penal Code’s section 312-316. The Act was passed due to the progress made in the field of medical science with respect to safer abortions.

Opinion needed for termination of pregnancy: –

• Opinion of one Registered Medical Practitioner (RMP) for termination of pregnancy up to 20 weeks of gestation.
• Opinion of two RMPs for termination of pregnancy of 20-24 weeks of gestation
• The opinion of the state-level medical board is essential for a pregnancy to be terminated after 24 weeks in case of substantial foetal abnormalities

Upper Gestation limit for Special Categories

Increases the upper gestation limit from 20-24 weeks for special categories of women, including survivors of rape, victims of incest and other vulnerable women (differently abled women, minors, among others).

Confidently

The “name and other particulars of a woman whose pregnancy has been terminated shall not be revealed”, except to a person authorized in any law that is currently in force.

Abortion performed by doctors

The Act require abortion to be performed only by doctors with specialization in gynaecology or obstetrics. As 75% shortage of such doctors in community health centres in rural areas, pregnant women may continue to find it difficult to access facilities for safe abortions.

It is commendable that the Central Government has taken such a bold stand while balancing the diverse cultures, traditions and schools of thought that our country maintains, however, the amendment still leaves women with various conditionalities, which in many cases become an impediment to access to safe abortion.

The Government needs to ensure that all norms and standardised protocols in clinical practice to facilitate abortions are followed in healthcare institutions across the country. Along with that, the question of abortion needs to be decided on the basis of human rights, the principles of solid science, and in step with advancements in technology.

What does the Judiciary say

The Medical Termination of Pregnancy Act 1971 which specifically deals with the abortion rights of women in India had a restrictive and narrow interpretation that only married women can abort their foetus up to 20-24 weeks of pregnancy as laid down in the Act as well as MTP rules 2003. However, The Supreme Court of India in 2021 removed the ban imposed on unmarried women and ruled that “unmarried and single women whose pregnancies were between 20-24 weeks cannot be denied access to safe and legal abortion”. The rights of reproductive autonomy give similar rights to unmarried women as that to married women, the bench held.

Since it has now become an act, one can be assured that the country is on the road to advancement, addressing women’s issues more fiercely than ever.

Conclusion

Reproductive rights are essential to the realization of all human rights. They encompass a spectrum of civil, political, economic, and social rights, from the rights to health and life to the rights to equality and non-discrimination, privacy, information, and to be free from torture or ill-treatment.

State’s obligations to guarantee these rights require that women and girls not only have access to comprehensive reproductive health information and services but also that they experience positive reproductive health outcomes such as lower rates of unsafe abortion and maternal mortality and the opportunity to make fully informed decisions free from violence, discrimination, and coercion about their sexuality and reproduction.

Violations of reproductive rights disproportionately harm women due to their capacity to become pregnant and legal protection of these rights as human rights are critical to enabling gender justice and the equality of women. The Constitution of India recognizes many of these same rights as a fundamental right that the government has an obligation to uphold, including the right to equality and non-discrimination (Articles 14 and 15) and the right to life (Article21) which is understood throughout jurisprudence to include the rights to health, dignity, freedom from torture and ill-treatment, and privacy.

End notes

[1] Roe v/s Wade, 410 U.S. 113(1973)

[2] AIR 1978 SCC 597

[3] (2018)13. SCC 339

[4] WP No. 104344/2021(GM-RES)

[5] WP(CIVIL)No. 494 of 2012

[6] (2009) 14 SCR 989, (2009) 9 SCC 1

[7] Suresh Kaushal v/s Naz Foundation Civil Appeal No. 10972 OF 2013

By: Girish Shirwal, a student at Seth Shankarlal Lahoti Law College.