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Abortion Politics: The Journey Of Reproductive Rights From Exile To Want Of Acceptance

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 needed.

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.

Introduction
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.

Our 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[1] 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.

This 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.

The 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 country.[2]

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 and girls.

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 contraceptive methods.

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:

  1. Women's right to decide for herself.
  2. Gestation period is only limited to 20 weeks with the consent of one medical practitioner.[3]

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.[4] And Jaitun v. Maternity Home, MCD, Jangpura And Ors.[5] 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[6] 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[7] 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 reproductive rights.

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 country.

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 rights.
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[8] 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.[9]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.[10]

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.

    She 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.[11]


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 Act[12]which 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 wider scope.

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.[13]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[14] 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 prevented through-

  1. 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.
  2. Use of effective contraception.
  3. Provision of safe, legal induced abortion.
  4. Timely care for complications.[15]

    Some measures which can be effective in India are:
    1. 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.
    2. 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.
    3. 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.


Future endeavours
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 reproductive health.

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 wanted.

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.

Conclusion
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 pregnancy.

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.

End-Notes:

  1. K.S. Puttaswamy v. union of India. Writ petition(civil) no. 494 of 2012.
  2. Reproductive rights in Indian court.org
  3. https://youtu.be/CfwHLRJN-k4
  4. Laxmi Mandal v. Deen Dayal Harinagar Hospital and Ors, W.P.(c) no.8853 of 2008
  5. Jaitun v. Maternity Home, MCD, Jangpura And Ors, Delhi High court W.P 10700/2009
  6. Sandesh Bansal v. Union of India, High Court of Madhya Pradesh at Indore W.P. 9061/2008
  7. Devika Biswas v. union of India and ors., Supreme Court W.P. (C) 95/2012
  8. Suchitra Shrivastava and Anr. V. Chandigarh Administration, (2009) 11 S.C.C. 409
  9. Dr. Mangla Dogra and ors. V. Anil Kumar Malhotra and Ors., C.R. 6337/2011
  10. Human Rights Law Network (2013)
  11. www.firstpost.com/living /shamed-and-scared-stories-of-legal-abortion-in-India
  12. Medical Termination of Pregnancy Act,1971, Act no. 34 of 1971
  13. Meera Santosh Pal and Ors. V. Union of India and Ors, (2017) W.P. (c) no. 17
  14. High court on its own motion v. State of Maharashtra, W.P. (CRL) no. 1/2016
  15. www.who.int

Written By:

  1. Tushti Pande
    Email id: [email protected], Ph no: + 7354030222
  2. Parul Saxena
    Email id: [email protected], Ph no:+7748045504

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