Authored by Sakshi Dewangan, a 5th year student of Hidayatullah National Law University.
Reproductive rights are the rights or freedoms guaranteed to the individual in relation to reproduction and reproductive health. The World Health Organisation (WHO) specifies that “Reproductive rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health”. Thus, reproductive rights are substantial to the realisation of all human rights.
The recognition of reproductive rights in various constitutions and international documents could be taken as a move towards the recognition of women’s liberty in relation to these decisions. The Constitution of India acknowledges a significant number of these rights as Fundamentals Rights which the government is under an obligation to provide-including the right to equality and non-discrimination (Articles 14 and 15) and the right to life (Article 21) which, through judicial interpretations, is understood to include the rights to health, dignity, freedom from torture and ill treatment, and privacy.
Additionally, India is a signatory to various international conventions which include the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) all of which acknowledge Reproductive Rights. Further, under Article 51(c) of the Constitution of India, the state is bound to respect the treaty obligations of the state.
In recent times, Indian courts have given a few striking judgements perceiving women's Reproductive rights as a component of the inalienable survival rights implicitly protected under the fundamental right to life. The worldwide evolution of jurisprudence on the Reproductive rights framework is based on two key principles- first, (a) the right to reproductive healthcare and second, the right to reproductive self-determination.
Reproductive Rights under Statutes
Two main legislation cover the reproductive rights of women in India- The Prevention of Child Marriage Act, 2006 (PCMA) and the Medical Termination of Pregnancy Act, 1971 (MTP Act). PCMA was enacted to prohibit solemnisation of child marriages in India and any matter connected therewith. The Act sets the legal age of marriage as 18 and 21 for girls and boys, respectively. Thus, PCMA was legislated to protect the girls from the evils of child marriage. Similarly, the MTP Act contains provisions with respect to abortion. It contains certain grounds, under which, abortion is legal in India. It further provides that abortion can be allowed upto 12 weeks with help of one medical practitioner, above 12 to 20 weeks with help of two medical practitioners and after 20 weeks can be allowed only on serious health grounds.
Although these Acts provide certain protections to women against the violation of their reproductive rights, there is a need to amend them so as to afford protection of reproductive rights. For once, abortion after 20 weeks of pregnancy must be allowed for broader grounds so as to give recognition to the woman’s right to reproductive autonomy. Moreover, Sections 313, 314, 315 and 316 of the Indian Penal Code, 1860 contain provisions for punishment in case of abortion and miscarriage which is done with the intention of causing death of the unborn child. Thus, not only is full autonomy not provided in case of abortion in India but it is also made a cognizable offence under the IPC. This implies that abortion in India is only legal if done in good faith for medical purposes.
Reproductive Rights under Article 21
Albeit India being one of the first countries to legislate legal framework ensuring access to abortion and contraception, there are still barriers that are experienced by women which restrict them from fully exercising their reproductive rights. However, the courts in India have adopted a progressive approach by recognising the following reproductive rights to be a part of Right to Life:
1. Maternal Health:
The Human Right Law Network in India started documenting a progression of petitions in high courts all through India looking for accountability for pregnancy-related death and wounds in the year 2008. This resulted in groundbreaking judicial recognition of women’s rights to survive pregnancy and childbirth as a fundamental right. In a joint decision of the Delhi High Court in the cases of Jaitun v. Maternity Home, MCD, Jangpura & Ors. and Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors. pronounced a landmark judgement regarding denials of maternal health care to two women living below the poverty line.
2. Access to Contraception:
The Supreme Court of India in 2016 pronounced a landmark judgement in the case of Devika Biswas v. Union of India & Ors. which surpassed the reproductive health framework and also realised autonomy and gender equality as a part of women’s constitutionally protected reproductive rights. The case arose as a result of a petition filed by a social activist against the state’s policy of sterilization which resulted in deaths and severe injuries. The court observed these policies to be violative of women’s fundamental right to life under Article 21 which includes reproductive rights of a person.
3. Child Marriage:
Child marriage was not considered as a violation of fundamental right of women until the Delhi High Court’s judgement in Association for Social Justice & Research v. Union of India & Others, where the court held that child marriage exposes vulnerable and young girls to domestic violence, social isolation and sexual abuse; thereby observing that child marriage violates the fundamental right to live life with dignity.
4. Abortion and Reproductive Autonomy:
Until 2008, the judicial precedent set in regards to abortion in India was regressive which maintained that a women’s choice to abort without her husband’s consent could amount to mental cruelty. However, in 2009, the law changed when the Supreme Court in Suchita Srivastava & Anr v. Chandigarh Administration recognized the right to reproductive autonomy as a fundamental right. Recently, the Supreme Court in Puttaswamy specifically laid emphasis on women’s constitutional right to make reproductive decisions and upheld the ruling of Suchita’s case.
At the international platform, many conventions and charter of international organisations contain provisions which recognize the reproductive right as a basic human right of every individual.
The Preamble to the Constitution of the World Health Organization (WHO) expresses that, it is one of the key privileges of each person to enjoy the highest attainable standard of wellbeing. The term 'wellbeing', here, envelops inside its ambit women's reproductive rights. Further, a similar principle is contained in Article 16(1) of the Universal Declaration of Human Rights (UDHR) Charter which can be understood to provide reproductive rights as a basic human right.
Further, Articles 11, 12 and 14 of the CEDAW provides that the States must take necessary actions to eliminate all forms of discrimination in the field of health care against women so as to ensure access to information and counselling in relation to family planning. The CEDAW committee has been progressive and has time and again called- out abusive state actions so as to ensure proper implementation of the convention. For example, in the case of L.C. v. Peru the committee found that the Peruvian government occupied with unjust gender stereotype in infringing upon CEDAW Article 5 where the state defaulted to prevent the refusal of fundamental health series to L.C., a thirteen-year-old girl who became pregnant following sexual assault and who at that point attempted to commit suicide.
Similarly, as per Article 12(1) of the ICESCR, the member states have consented to afford the right to access to adequate standards of physical and mental health to every individual. Further, Clause (2) recognises certain reproductive rights. Thus, development with relation to reproductive rights in the international framework is advancing the judicial principles qua these rights in the domestic sphere.
The international sphere has been concerned with the encouragement of reproductive rights at the international as well as domestic level. Most of the conventions bound the member states to provide protection of these rights so as to eliminate gender inequality. The major contention towards the promotion of reproductive rights is that they uplift the social status of women thereby bringing them at the same platform as that of men. Reproductive autonomy and access to adequate reproductive health and knowledge are the core pillars of reproductive rights.
India being a member of all the conventions discussed above is bound under Article 51(c) to respect the provisions of these conventions and to incorporate them in the domestic sphere in accordance with its socio-economic situation. By virtue of this, India has incorporated many rights through legislation and judicial interpretations. Yet, there are many modifications required since certain barriers still subsist which prevent women from enjoying these rights.