Reproductive health, is a crucial part of health sector in any country. And in
India, it is a very important issue which needs to be discussed. As, unsafe
abortion are major cause of maternal morbidity in India. Abortions is an
important part of health of a woman and should be easily available to her when
The Constitution of India does not explicitly declare Right to health as a
fundamental right. But it is quite evident that Article 21 of Constitution of
India guarantee us the fundamental right which is Right to life. Right to health
is an integral part of Right to life and it can also be seen in various
decisions of the Honourable Supreme court of India and, since, Right to
reproductive health is an important right under Right to health, therefore it is
of great significance to make laws and legislations for the benefits of
reproductive right of a citizen in India.
In this paper we would be discussing the history of abortion laws, the need of
recognition of reproductive right as a fundamental right, the current scenario
related to abortion laws in India and history of judicial decisions which were
taken by different courts but were not uniform. The research paper also
discusses the case studies which evidently shows huge requirement of change in
the present laws related to abortion.
The paper, also highly recommend amendments in Medical Termination of Pregnancy
Act, 1971 and tries to convey future endeavour which can be helpful for India to
make policies, laws and implement them in such an effective way, where the laws
mainly focuses to ensure or guarantee the women their Right to reproductive
health, which is a significant part of their Right to health and Right to health
is guaranteed to us by our constitution. It also carry the recommendations which
are issued by the international and national bureaucrats.
Any right which we want from our Government to guarantee us needs to be
understood by us.
Reproductive rights are the basic rights of an individual to make decision
related to one's reproduction and to have one proper reproductive health, this
right includes rights like family planning, termination of pregnancy, access to
contraceptives, access to information about sex education and are to be provided
with services related to reproductive health.
history of judicial dicta has presented several notable decisions regarding the
reproductive right of women in our country. The recent judgement of justice K.S.
Puttaswamy v. union of India has contributed in the development of
reproductive rights stating privacy of women. In this decision the
Honourable Supreme court of India examined two reproductive rights issue that can
be prominently seen in recent public discourse, which are the issues related to
abortions and surrogacy. In this paper we are trying to highlight the much-needed
legislature enactment and social security to resolve potential Constitutional
challenges related to these two issues.
In certain landmark judgements, the courts have considered reproductive rights
of women as an integral part for women's equality and further granted autonomy
related to rights of women, their decision making with respect to their
pregnancy for the cases related to women ‘s health and their reproductive
rights. Due to no uniformity in the decisions of the court, several rulings have
audaciously recognized remedies for violations of women's reproductive rights.
International platforms are giving recognition to reproductive rights of women
as a right to maternal health which can play a pivotal role for Indian judiciary
to give their judgements considering the reproductive rights of women as there
Right to health.
Recognition of reproductive right as fundamental Right to health
Reproductive rights play an important role as they consist of the economic,
social, civil and political rights of women and can be derived from the
fundamental rights which are Right to health and life, right to equality and
non- discrimination, right to privacy, right to information and to secure women
from torture and ill – treatment. Since these rights are derived from
fundamental rights provided under the Constitution of India, it is the duty of
the state to guarantee all these rights to women and girls for their social
securities and to provide them access to information and services related to
comprehensive reproductive rights and to help them to lead a healthy life.
information can be used to lower the rates of unsafe abortion and maternal
mortality among the women population of India. There are several international
conventions related to reproductive rights and maternal health to which India is
a signatory. Some of these conventions are the international covenant on civil
and political rights; the international covenant on economic, social and
cultural right; the convention on the rights of the child and the convention on
the elimination of all forms of discrimination against women. The Constitution
of India and the Indian judiciary have enacted that the state has a
Constitutional duty to adhere with the international law and obligation of the
treaties of which Republic of India is signatory under the Article 51 (c) which
consist of fundamental duties.
The state has a Constitutional duty to provide to
its citizen with legal remedy for the violations of their fundamental rights and
human rights provided to them by the Constitution of India. The Article 39(a)
which is one of the directive principles of state policy provided under the
Constitution of India, states the promotion of equal access to justice and free
legal aid to its citizens, as a duty of state towards its citizens.
Present scenario regarding reproductive rights in India
It is not always necessary to have first movers' advantage in making the
policies related to any particular issue until such policy are implemented
properly. India is one of the first country in the world to enact policies and
laws ensuring the reproductive rights such as abortion and contraception but
since such policies and laws are not implemented properly, women and girls
continue to face hindrances for full enjoyment of their reproductive rights.
data reveals that unsafe abortions kill 13 Indian women every day and is the
third biggest cause of maternal mortality in India. 56% of abortions in India
are considered unsafe and are cause of around 9% of maternal mortality in the
The British Medical Journal stated that the high estimated
prevalence of unsafe abortion demonstrates a major public health problem in
India. These hindrances categorically include poor quality of health services
and denial of decisions of women and girls related to their reproductive rights.
The history itself reveals that the laws made for reproductive rights of women
and girls were mainly focused towards resolving the issue of population control,
instead of giving emphasis on maternal health and reproductive rights of women
The primary objective of such laws should have been providing autonomy to women
and girls regarding their reproductive rights. Although India has laws
penalizing child marriages, still India continues to have highest number of
child marriages and maternal mortality rate, globally which is estimated to be
20%. Our country has laws which guarantees women and girls autonomy to take
decisions related to their reproductive rights which includes access to
Still in practice the state governments continue to
introduce various schemes which promote female sterilization which sometime
leads to coercion, risky form of sterilization procedures and denial of access
to temporary methods of female sterilization.
Although in India abortion is legal on various grounds until the period of 20
weeks of gestation, and for cases where it is necessary to save the life of the
pregnant woman throughout gestation period under the Medical Termination of
Pregnancy Act, 1971.
This Act is limited mainly on two important grounds which are:
- Women's right to decide for herself.
- Gestation period is only limited to 20 weeks with the consent of one
And one of the crucial points of this Act which is to be considered is that the
same law is followed in the case of pregnancy of rape victim. Though the Act
suggest that abortion after the period of 20 week can take place with the
permission of court still it is to be considered that the court procedures are
time consuming and this time consumption can be dangerous for the health of
pregnant women as well as the child in the womb.
The Indian Government has been
warned by the United Nation Human Rights experts related to the issue of
violation of reproductive rights which includes maternal mortality and
morbidity, unsafe abortions and lack of quality care after the abortion, denial
of access to information related to contraceptive methods and reliance on
coercive and poor standard female sterilization, child marriage and lack of sex
education. These bodies have called the Indian representatives for being
accountable to these issues.
The Indian Judiciary have a pivotal role in
guaranteeing women's and girls' reproductive rights to govern their decisions
themselves because these rights are an integral part of Constitutional and human
rights in nature.
Judicial dicta on reproductive rights
In various judgements the Honourable Supreme court of India and several state
High courts have recognised the importance of autonomy of women's reproductive
rights. This section of the paper highlights various decision of the courts
ensuring the women and girls autonomy to their reproductive rights which provide
them amenities such as affordable, timely and standard maternal health care,
ensuring them access to full range of contraceptive methods in a non-coercive
way, preventing child marriages and guaranteeing freedom from forced pregnancy
by the way of safe and legal abortion.
A series of petitions were filed in the High court in the year 2008 by Human
Right Law Network in India,regarding issues related to maternal morbidity which
brought a significant change in judicial decisions which recognised women right
to survive pregnancy as a fundamental right. The below mentioned case uphold
women's right to maternal health care with dignity.
In 2011, in the landmark cases of Laxmi Mandal v. Deen Dayal Harinagar Hospital
and Ors. And Jaitun v. Maternity Home, MCD, Jangpura And Ors. Denials of
maternal health care of women living below poverty line was observed. The court
stated that the denial of maternal health care below poverty line leads to
violation of two inalienable survival rights of women, therefore, the violation
of these rights will lead to denial of Right to health which includes a quality
standard of treatment and care in public health facilities and in particular,
the reproductive rights of women. As India is signatory of CEDAW and ICESCR so
the decision states that irrespective of the social and economic background of
the women, she should be provided these facilities of treatment at any stage of
her pregnancy because it is her Right to health.
In 2012 the High Court of Madhya Pradesh, upheld the decision of Delhi High
Court in the case of Sandesh Bansal v. Union of India which was a public
interest litigation, demanding the accountability for maternal morbidity and
recognizing that the inability of a women to survive during her pregnancy and
child birth violates the fundamental Right to life as provided under Article 21
of the Constitution of India and it is the primary duty of the state under this
Article to guarantee Right to life to every women surviving pregnancy and child
birth. The decision of this case specifically rejected the justification that
financial constraints or inabilities lead to violations of reproductive rights.
This decision established that it is the obligation on the state under Article
21 to immediately guarantee and implement maternal health services, such as
basic infrastructure, access to blood, water and electricity in health sectors –
timely production of maternal health services and skilled personnel – and
effective grievance redressal mechanism where maternal health care is denied.
In the year 2016 the Honourable Supreme court stated the judgement in the case of
Devika Biswas v. union of India which was a remarkable judgement as it moved
beyond the reproductive health framework and also recognised women's own
decision and gender equality as inherent element of Constitutionally protected
Several petitions related to the issue of violation of
reproductive rights occurring from forced and low standard sterilization process
and lack of access to contraceptive methods have been brought before the courts
over a decade. This particular decision established that the state policies
which leads to schemes related to sterilization abuses and violates women's
fundamental and human right. This decision marks a significant role which
justifies violations of reproductive right to control the population growth of
The Honourable Supreme court of India unequivocally held that the matters related
to reproductive rights of a person are recognised as both part of the Right to
health as well as an aspect of personal liberty under Article 21 of Constitution
of India and defined that these rights includes right to access to full
reproductive health information, amenities, goods and services which are
required for such reproductive health. The freedom to exercise reproductive
rights includes the right to make choices regarding sterilization on the basis
of informed consent and free from any form of coercion.
Significantly the highest appellate court of India linked the legislations
related to violations of reproductive rights with violation on right to female
sterilization and emphasised that it is the obligation on state to guarantee
reproductive freedoms of economically and socially marginalised group, which
shows concerned towards providing incentives to persons deprived of these
Recent legislations related to abortions in India reflects a progressive
evolution in the judiciary's interpretation of reproductive rights. In the year
2004 a Supreme court ruling undermined freedom of women's reproductive right by
holding the judgement that women's decision to undergo abortion or sterilization
process without the consent of her husband can constitute to mental cruelty.
Subsequent decision brought progressive interpretation of greater Constitutional
right protecting reproductive rights of women.
In the year 2009 in case of Suchitra Shrivastava and Anr. V. Chandigarh
Administration the Supreme court stated that there is no doubt that a woman's
right to make reproductive choices is also a dimension of personal liberty as
understood under Article 21. In the case of Dr. Mangla Dogra and ors. V. Anil
Kumar Malhotra and Ors.the high court of Punjab and Haryana, repeated in its judgement the decision of Supreme court and stated that it is the women's
individual right to reproductive autonomy and nobody can interfere in the
personal decision or choice of the person to carry on or abort her pregnancy
whether it is her husband because the individual decision of women is directly
related to and will affect her mental health.
Further in the case of Hallo Bi v.
State of Madhya Pradesh and Ors. the high court of Madhya Pradesh, significantly
provided in its judgement that victims of rape can have access to abortion
without prior requirement of Judicial Authorisation and the court also stated
that one cannot coerce a victim of violent rape /forced sex to give the birth to
a child of a rapist because the humiliation suffered by the petitioner will
certainly cause a grave injury to her mental health.
Though child marriage is illegal in our country still its presence is there and
it is quite obvious that because of girls being married in such a young age,
they are sexually abused without having proper knowledge or information on
sexual intercourse. These young girls are clearly denied with their Right to
reproductive health which is included in the fundamental right of Right to
health as well as right to lead a life of freedom and dignity.
The Delhi High
court also emphasised the impact of lack of education on these young married
girls stating that the marriage in such young age limits them the access to full
information about their reproductive rights and sexual health and also denies
them the ability to be informed about their maternal health and matters related
to family planning. The court therefore recognised that child marriage is
unrelenting cycle of gender inequality, sickness and poverty.
Unsafe abortion cases in India
- The girl named Mitra was 20 years old, in the second year of her
college two weeks earlier she found out that she was pregnant she tried to
contact her boyfriend but he stopped taking calls after she confessed him that
she was pregnant. Mitra had heard of her acquaintances who underwent abortion
and thereafter she researched online about the abortion pills armed with that
knowledge, Mitra went to a nearby pharmacy and bought Cytotec. Cytotec was an
abortion inducing drug.
The generic name of Cytotec is misoprostol and this drug
is illegal to be sold without a Doctor's prescription but in this case was
easily bought by Mitra. She dutifully followed the instruction for use of the
tablet and started bleeding within two hours. Over the next two days she had to
miss her college due to heavy bleeding and experience of morning sickness she
thought that it was a natural after effect. She couldn't sleep on her right side
as it was hurtful a proper diagnosis revealed an infection in her fallopian tube
and reported that she would never be able to conceal.
- Another case was of a 19-year-old Jyoti who belonged to Ho tribe of
Jharkhand and was from Guha village of West Singhbhum district. She had an
affair with a boy who was working in Delhi and was her neighbour. She contacted
to a midwife on diagnosed her pregnancy and asked her to keep an extract of
medicinal root and shrub in her vagina for two to three days it did not lead to
any result. After few months the midwife then gave her a concoction of boiled
betel nut roots and jaggery which caused her immense pain in the abdomen.
could not go to primary health centre and even could not tell her parents
because of their orthodox thinking. A proper diagnosis it was revealed that a
14-week foetus without a heartbeat was present in her womb the foetus was
removed through a surgery and during this process her womb was perculated which
led her to a situation where she can never conceive in future.
- In the year 2017 a 13-year old girl was brutally raped due to which
pregnancy was diagnosed to her the girl wanted to terminate her pregnancy
but she was denied the relief due to red tapism. The process of such lengthy
paperwork in the judiciary of our country lead her to delay in the limitation
period for termination of pregnancy required by our legal system.
After the pregnancy crossed 20 weeks the doctors advised the girl against
abortion stating that it was too risky for the health of the girl to abort her
child. This case shows that because of delay in the judicial process the girl,
at such a young age had to lead a life with an unwanted child.
Should there be amendment in Medical Termination of Pregnancy Act?
Since the year 2008 petitions have been filed regarding interpretation of
Section 5 of the Medical Termination of Pregnancy Actwhich allows abortion
past 20 weeks on health grounds such as to save the life of the pregnant women,
in cases of rape victims and in cases of fetal impairment. There are still
cases pending in the Supreme court seeking recognition that the Constitution can
be interpreted regarding access to abortion after the period of 20 weeks in a
There are few cases where the Supreme court has permitted abortion
past 20 weeks where the court found that it was necessary to do so to save the
mental and physical health risk of the women as well as the child.
In 2017 in
the case of Meera Santosh Pal and Ors. V. Union of India and Ors.the Supreme
court stated that the abortion is legal past 24 weeks in the cases of
anencephaly, which is the absence of the major portion of the brain, skull and
scalp that occurs during embryonic development and this impairment also puts in
danger the life of pregnant women, the court also stated that in these cases the
abortion is necessary as the women has the right to preserve her own life
against the avoidable danger.
There are cases in the state High court which have
different ruling regarding the matter of abortion after 20 weeks which shows
there is no uniformity in the judgements of the court in India and therefore it
is significantly required to have amendment in the medical termination of
pregnancy Act 1971.
In the year 2016 in the case of High court on its own motion v. State of
Maharashtra the Bombay High court stated that women prisoners also have
access to abortion as it is an aspect of the fundamental right to live with
dignity under Article 21 of the Indian Constitution the judgement considered
that unwanted pregnancy deteriorate the mental and physical health of women and
their autonomy to continue their pregnancy which can also lead to mental trauma
for the women.
The decision audaciously recognises that an unborn foetus is not
an entity with human rights. The pregnancy takes place within the body of a
woman and has profound effects on her health, mental well-being and life. Thus,
how she wants to deal with this pregnancy must be a decision, she and she alone
can make. The right to control their own body, fertility and motherhood choices
should be left to women alone. Let us not lose the sight of the basic right of
women- the right to autonomy and to decide what to do with their own bodies,
including, whether or not to get pregnant and stay pregnant.
World Health Organisation Recommendations
World Health Organisation is an international platform which works or provide
services to lead a healthy life by every person in the world, and this
organisation suggests some methods regarding health issues related to
reproduction. It states that almost every abortion death and disability could be
- sexuality education it is an instruction, method based on curriculum
that aims to give students the knowledge, attitude, skills and values to
make appropriate and healthy choices in their sexual life.
- Use of effective contraception.
- Provision of safe, legal induced abortion.
- Timely care for complications.
Some measures which can be effective in India are:
- We should remove this social taboo, to not discuss about sexual
reproductive health with our parents or guardians. It is the parents who
should make their children comfortable to talk with them for matters related
to reproductive health.
- To make the work easy we can differentiate the population in two
categories urban and rural, and more efforts are required to educate rural
people in comparison to urban people.
- It is highly required that the people through whom the women will have
access to information for their reproductive rights be skilled and should
have proper knowledge themselves to deliver information concerning
reproductive health services. This practice will be more effective in
educating the women.
The cases above mentioned shows the significance and need of progressive change
which a judiciary can play in India to resolve the legal and practical obstacles
which are denied to women and girls in the case of their reproductive right, it
is evident that our legislation has not yet addressed all the issues which a
women or a girl faces during exercising her Right to reproductive health. The
constant efforts of all the three organs of state is highly required to prevent
Maternal morbidity and unsafe abortion in the country. Now it is the time to
shift the objective of Medical Termination of Pregnancy Act 1971 from a
population control approach to confront discriminatory stereotypes that acts as
a hindrance for women and girls to govern their decisions related to their
It can be seen in various judicial dicta that fast track courts are being set up
for speedy justice in the rape cases. A progressive change is also required for
the rape victims who suffered such a brutal attack on themselves and the after
effect of this attack also needs a speedy trial because the raped woman or girl
already suffers a lot in this conservative society and if in case one of the
after effect is pregnancy and the victim does not want to continue the
pregnancy, it is the lengthy paperwork or red tapism, which is a huge obstacle
for her to get relief under Medical Termination of Pregnancy Act and she is
though not legally forced but has to continue her pregnancy which she never
Further in the future scenario it is quite evident that there is a huge
requirement of judiciary seeking progressive interpretations or reform the
Medical Termination of Pregnancy Act and to implement the legal framework in
order to provide women and girls autonomy to their reproductive right and
maternal health. The judiciary has a very significant role to play in
implementing the legislation and interpreting a wider scope for providing the
benefits to the women in compliance with their reproductive right.
Though judiciary is changing progressively but the time which it is taking to
change is still to be considered a crucial point. There is a huge need of our
legislation laws policy makers and judiciary to bring the change in the health
sector related to reproductive health care. This change will be effective when
it will be implemented efficiently. The laws in our country should not at any
point or at any circumstances, force woman to continue with her unwanted
It is high time to make legislations which focuses more on benefits
of reproductive health of women rather preventing population growth. Women in
our country deserve services like truthful information regarding their
reproductive health, quality health services and treatment which are appropriate
for their health. Therefore, judiciary has a key role to provide women with
their basic reproductive right in order to ensure their Right to health.
- K.S. Puttaswamy v. union of India. Writ petition(civil) no. 494 of 2012.
- Reproductive rights in Indian court.org
- Laxmi Mandal v. Deen Dayal Harinagar Hospital and Ors, W.P.(c) no.8853
- Jaitun v. Maternity Home, MCD, Jangpura And Ors, Delhi High court W.P
- Sandesh Bansal v. Union of India, High Court of Madhya Pradesh at Indore
- Devika Biswas v. union of India and ors., Supreme Court W.P. (C) 95/2012
- Suchitra Shrivastava and Anr. V. Chandigarh Administration, (2009) 11
- Dr. Mangla Dogra and ors. V. Anil Kumar Malhotra and Ors., C.R.
- Human Rights Law Network (2013)
- Medical Termination of Pregnancy Act,1971, Act no. 34 of 1971
- Meera Santosh Pal and Ors. V. Union of India and Ors, (2017) W.P. (c)
- High court on its own motion v. State of Maharashtra, W.P. (CRL) no.
- Tushti Pande
Email id: [email protected], Ph no: + 7354030222
- Parul Saxena
Email id: [email protected], Ph no:+7748045504