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Reproductive Rights for Women in India

Historically, the reproductive rights movement in the U.S. has seen many controversies due to the moral, ethical, and religious undertones of birth control, abortion, and family planning. Today, the subject of reproductive rights continues to be an emotionally and politically charged issue, especially in light of new technologies and recent laws.

In general terms, Reproductive rights are the rights of individuals to decide whether to reproduce and have reproductive health. This may include an individual's right to plan a family, terminate a pregnancy, use contraceptives, learn about sex education in public schools, and gain access to reproductive health services.

Right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children. It also includes Right to information and means to do so right to highest standard of reproductive health, right to make decisions concerning reproduction free of discrimination, coercion and violence.
Empirically, Courts have been at the forefront of expanding, protecting, and promoting reproductive rights.

Reproductive Rights in India: The Current Situation

Although India was among the first countries in the world to develop legal and policy frameworks guaranteeing access to abortion and contraception, women and girls continue to experience significant barriers to full enjoyment of their reproductive rights, including poor quality health services and denials of women's and girls' decision-making authority.

Historically, reproductive health-related laws and policies in India have failed to take a women's rights based approach, instead focusing on demographic targets, such as population control, while also implicitly or explicitly undermining women's reproductive autonomy through discriminatory provisions such as spousal consent requirements for access to reproductive health services. Despite a national law penalizing marriages of girls below 18 years of age and policies and schemes guaranteeing women maternal healthcare, in practice India continues to account for the highest number of child marriages and 20% of all maternal deaths globally.

Although India's National Population Policy guarantees women voluntary access to the full range of contraceptive methods, in practice state governments continue to introduce schemes promoting female sterilization, including through targets, leading to coercion, risky substandard sterilization procedures, and denial of access to non-permanent methods.

Also, courts in India have an important role to play in ensuring women's reproductive rights as guaranteed by their constitutional and human rights.

Abortion and Reproductive Autonomy

The Puttaswamy judgment[1] specifically recognised the constitutional right of women to make reproductive choices, as a part of personal liberty under Article 21 of the Indian Constitution. The bench also reiterated the position adopted by a three-judge bench in Suchita Srivastava v Chandigarh Administration[2], which held that reproductive rights include a woman's entitlement to carry a pregnancy to its full term, to give birth, and to subsequently raise children; and that these rights form part of a woman's right to privacy, dignity, and bodily integrity.

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. States' 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 is critical to enable gender justice and the equality of women. The Constitution of India recognizes many of these same rights as fundamental rights 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 (Article 21) which is understood through jurisprudence to include the rights to health, dignity, freedom from torture and ill treatment, and privacy.

India is also a signatory to numerous international conventions, such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); and the Convention on the Rights of the Child (CRC), all of which recognize reproductive rights. Article 51(c) of the Indian Constitution and the judiciary have established that the government has a constitutional obligation to respect international law and treaty obligations.

The government of India also bears a constitutional obligation to ensure legal remedies for violations of fundamental rights and human rights. Article 39(a) requires the government to promote equal access to justice and free legal aid as a means to ensure that “opportunities for justice are not denied to any citizen by reason of economic or other disabilities.”

Judicial Recognition of Reproductive Rights as Fundamental and Human Rights

The Supreme Court of India and several state high courts have made important strides in recognizing the denial of reproductive rights as violations of women's and girls' fundamental and human rights. This section highlights key decisions that have broken ground in clearly establishing that women's and girls' legal rights to reproductive healthcare and autonomy give rise to a range of government obligations, including providing affordable, timely, and quality maternal health care; guaranteeing access to the full range of contraceptive methods in a non-coercive, quality, and target free manner; preventing child marriage; and ensuring freedom from forced pregnancy through access to safe, legal abortion.

U.N. human rights experts and bodies have raised concerns to the Indian government about human rights violations arising from a range of reproductive rights issues, including maternal mortality and morbidity, unsafe abortion and poor quality of post-abortion care, lack of access to the full range of contraceptive methods and reliance on coercive and substandard female sterilization, child marriage, and lack of information and education on reproductive and sexual health. These experts and bodies have called for India to address these violations, as well as disparities in access to reproductive health care. Courts in India have an important role to play in ensuring women's reproductive rights as guaranteed by their constitutional and human rights.

Judicial Rescue

The Supreme Court has been extremely progressive on women's reproductive rights.
  • By decriminalising adultery and homosexuality in the landmark judgment of Navtej Johar[3] the court has held clearly, that women have a right to sexual autonomy, which is an important facet of their right to personal liberty.
  • The Puttaswamy judgment specifically recognised the Constitutional right of women to make reproductive choices, as a part of personal liberty under Article 21 of the Indian Constitution.
  • In the case of Independent Thought v. Union of India[4] in the context of reproductive rights of girls SC held, “the human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance”.
These judgments have an important bearing on the sexual and reproductive rights of women. The right to safe abortion is an important facet of their right to bodily integrity, right to life and equality and needs to be protected.

Locating reproductive health rights within the constitutional provisions, the realization of reproductive rights is interrelated with, and dependent on, the protection and fulfilment of various human rights like the right to life, the right to health, the right to non-discrimination, and the right to protection from gender-based violence.

In India, the reproductive rights of individuals and couples can be located in a constellation of laws and policies relating to health, employment, education, provision of food and nutrition, and protection from gender-based violence. Certain fundamental rights are guaranteed under Part III of the Constitution of India.

Article 13 prohibits the State from making any law that takes away or abridges the fundamental rights. The right to life, the right to equality before law, the right against non-discrimination, and the right to freedom and expression are some of the fundamental rights recognised in Part III of the Constitution of India.

Article 14 prohibits the State from denying to any person equality before the law or the equal protection of the law within the territory of India. Article 15(1) prohibits the State from discriminating against any citizen on grounds of religion, race, caste, sex, place of birth, or any of them. Article 15(2) and Article 15(3) permit the State to make special provisions for women and children, and for any socially and educationally backward classes of citizens or for Scheduled Castes and Scheduled Tribes.

Article 16 guarantees equality of opportunity in matters of public employment, and provides that no citizen shall, on grounds of religion, race, caste, sex, descent, place of birth, residence, or any of them, be ineligible for, or discriminated against, in respect of any employment or office under the State. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law.

While the right to health (or reproductive rights) is not expressly recognised as a fundamental right in the Constitution of India, several Supreme Court decisions have interpreted the right to health and the right to timely and adequate medical treatment as integral to the right to life. In Parmanand Katara v Union of India[5],which was a public interest litigation (PIL) pertaining to the provision of emergency medical treatment to injured victims of motor accidents, the Supreme Court held that Article 21 obligates the State to preserve life, and doctors at government hospitals are duty bound to extend medical assistance for preserving life.

No law, procedure, or State action can void or impede this obligation of medical professionals. In Paschim Banga Khet Samity v State of West Bengal[6], it was held that the State is obligated to provide adequate medical facilities, and denial of timely medical intervention to a person in need of such treatment by a government hospital is a violation of Article 21.

The Supreme Court in Suchita Srivastava and Another v Chandigarh Administration[7] stated that reproductive autonomy is a dimension of personal liberty as guaranteed under Article 21. It held: “It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in sexual activity or alternatively the insistence on the use of contraceptive methods. Furthermore, women are also free to choose birth-control methods such as undergoing sterilisation procedures.

Taken to their logical conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.” Several provisions in Part IV of the Constitution of (Directive Principles of State Policy) are related to issues of health. Vide Article 47; it is among the primary duties of the State to raise the level of nutrition and the standard of living of its people and to improve public health. Article 39(e) proclaims that the State should direct its policy towards ensuring that the health and strength of both men and women workers, and of children, are not abused and that citizens are not forced by economic necessity to enter vocations unsuited to their age or strength. Article 39(f) provides that States must take steps to ensure that children are given opportunities and facilities to develop in a healthy manner.

Article 42 provides that the State shall make provisions for securing just and humane conditions for work and for maternity relief. Article 45 states that the State shall endeavour to provide early childhood care and education for all children until they complete the age of six years. These provisions are not enforceable in any court, but the State is obligated to apply these principles in making laws and policies because they are fundamental to the governance of the country.

Assessment Of Key Areas Of Reproductive Health And Rights: Issues, Gaps And Compliance

Reproductive and sexual health rights are a part of comprehensive health rights. To ensure the fulfilment of these rights, a nation country needs to have in place a well developed public health system that is capable of providing health care services that are comprehensive, of good quality, accessible to all, free at the point of access, and, above all, accountable to citizens.

Unfortunately, the public health system in India is challenged by a range of issues, including low public investment, poor infrastructure, including medical and diagnostic facilities, and inadequately skilled human resources.

Additionally, the past decades have witnessed increased privatisation and corporatisation of health care and an absence of robust regulation. This has led to a sharp deterioration in the accessibility, affordability, and quality of health care, resulting in further social, economic, and geographical distances from health care, particularly for girls, women, and marginalised communities.

The treatment of women, especially those from marginalised sections, at public health facilities is often inadequate, indifferent, and callous, stripping them of their dignity and agency. This results in women's reluctance to seek treatment at public health facilities, thus impacting access and reach. The upholding of reproductive rights and the provision of sexual and reproductive health services are essential to protect the human rights of women, particularly those belonging to marginalised and excluded groups like sex workers, LGBTIQ (lesbian, gay, bisexual, transgender/transsexual, intersex, and queer/questioning) groups, women with disabilities, and ageing women.

Women have the right to:
  1. Decide freely and responsibly the number, spacing and timing of their children
  2. Have the information and means to decide feely and responsibly the number of spacing and timing of their children.
  3. Attain the highest standard of sexual and reproductive health (you have the right to be physically mentally and socially healthy with access to medical, mental and social facilities and services and supports to exercise your sexual and reproductive rights.)
  4. Make decisions about your reproduction free of discrimination, coercion and violence
    • It is your decision whether you have 0, 1 or 7 children.
    • It is your decision whether you undergo female sterilization now or when you are 50 or not at all.

Right To Equality In Reproductive Decisions

The right to equality in reproductive decisions includes the right to:
  • Choose whether and when to marry and start a family.
  • Marriage should be with the full, free, and informed consent of both individuals
  • You have the right to make responsibly right to make reproductive decisions when it comes in your body your health and your family.

Right To Sexual And Reproductive Security

The right to Sexual and reproductive security gives you the right to:
  • Live a life free of gender based violence ( includes sexual violence, incest, trafficking , dowry related violence, and rape based on the fact that you are female)
  • Protection of physical and mental integrity (you have the right to live a life free of mental harm and violence based on the fact that you are female.)
  • Management and gynaecological problems, infertility, prevention; and
  • Treatment and prevention of sexually transmitted diseases sexually transmitted infections, and HIV/AIDS
  • If you have HIV/AIDS positive or and STI, you have the right to medical treatment;
  • The high incidence of sexually transmitted diseases, infections, and HIV/ AIDS reflects the practice of unsafe sex.

Right To Reproductive Sexual And Health Services

The right to reproductive and sexual health services includes the right to:
  • Safe and affordable methods of family planning.
  • If you decide to have children, you will be able to do so in a safe environment with medical care and assistance.
  • If you decide to use family planning services, you will have access to these services in a safe and hygienic environment
  • Safe motherhood
  • You have the right to survive pregnancy

The promotion of these rights should be the fundamental basis for government and community-sponsored policies and programs. The government must consider the rights as a fundamental part of the laws it enacts, the policies it puts in place and the programs it creates.

End-Notes:
  1. 2012a: para 72, 2012b: para 46, 2012c: para 38
  2. (2009) 14 SCR 989
  3. Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice; AIR 2018 SC 4321
  4. (2017) 10 SCC 800
  5. 1989 AIR 2039
  6. 1996 SCC (4) 37
  7. (2009) 14 SCR 989

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