The United Nations Entity for Gender Equality and the Empowerment of Women (UN Women) underscores that "Reproductive rights are integral to women's rights, a fact that is upheld by international agreements and reflected in law in different parts of the world". (UN Women, 2022)
Reproductive and sexual rights for women are to provide them with autonomy in making their own reproductive decisions without any coercion or lack of provision in the Justice system. This country has the number one ranking in population and is recognised for its diverse culture, but the question arises about how fair the country's Judiciary is towards its women.
Women’s Reproductive Rights are fundamental rights to life, which should be discussed gravely, and provisions should be made to protect them more actively. In the country where, each day, nearly eight women succumb to complications related to unsafe abortion (Center for Reproductive Rights, 2021) while significant strides have been made to curb that issue, still in many parts of the country, problems met due to maternal health, contraception, abortion and child marriage remains a consequential dent in the county’s Reproductive Rights towards its women.
This blog provides a general survey of women’s Reproductive Rights, covering topics related to the legal framework, knowledge, accessibility, and hardships they face in realising their rights.
Reproductive rights are equal to fundamental rights
The Indian Constitution guarantees fundamental Rights such as the Right to life, equality and non-discrimination under Articles 14, 15 and 21. As it’s cored, the Constitution upholds freedom from torture and ill-treatment, the right to health and the right to life with dignity. The government has the duty and obligation to follow Fundamental Rights when it comes to providing women with their Reproductive Rights and yielding them the right to decide what they choose for their own bodies. Women should get the opportunity to make fully informed decisions regarding their Reproductive health and sexuality, free from violence, bigotry and oppression if not the basic core of their Fundamental Rights are being violated.
Provision of Legal Framework for Reproductive Rights.
Reproductive Rights grants women in getting the control over making decisions for their Reproductive health without any coercion. While, India has been among the first countries to make a legal framework regarding the Reproductive Rights of women, still in many parts of the country the accessibility of the rights has been inconsistent and women still cannot exercise the rights fully.
India has passed a few statutory legislations regarding Reproductive Rights in India. The two important laws are the Prevention of Child Marriage Act, 2006 (PCMA) and the Medical Termination Pregnancy Act, 1971 (MTP Act). PCMA safeguards young girls from early marriages, defined as someone who is under the age of 18 for girls and 21 for boys. This particular law protects many women from being married at a young age and associated risks, including marital exploitation. MTP Act, on the other hand, is a law that allows medical practitioners in India to terminate pregnancies in certain conditions. MTP Act permits abortion at 20 weeks of pregnancy and 24 weeks on health grounds.
The Pre-Conception and Pre-Natal Diagnostic Technique (PCPNDT) Act, 1994, was enacted to curb the number of female feticides happening in the country. It prevents sex-selective abortion and protects women from the coercion to abort. Despite these legal safeguards, weak implementation of the law and the deep-seated gender bias hinder women’s reproductive autonomy, limiting them from making informed decisions.
Abortion- women’s right to choose
Women’s Reproductive autonomy is where they get the right to decide whether they want to continue the pregnancy. Women should have the right to make the decision of abortion or sterilisation without anyone else’s consent; however, restrictive norms by society and legal ambiguities deprive them of their choice. Laws and policies in India fail to adequately protect women from the coercion, external pressure and stigma of continuing an unwanted pregnancy. In a lot of cases, the requirement of spousal consent is still practised, violating women’s right to privacy and, in some instances, completely denying them their ability to make decisions regarding their own bodies.
Although the battle for Reproductive autonomy is still an ongoing process but with the introduction of the Medical Termination of Pregnancy Act, 1971 (MTP Act), has been a significant step taken regarding the freedom for women to make decisions for their bodies. Abortion is fundamentally a woman’s right, embedded in her freedom to make choices regarding her body, free from any oppression, societal pressure and legal obligation except in cases where it poses a risk to her health and safety.
Maternal Mortality and Morbidity.
Maternal Mortality, which refers to the death of women due to complications during pregnancy or childbirth, is a critical issue in India. It is a significant health issue happening in India due to unsafe abortion or lack of proper care and treatment during pregnancy. The risk of a woman dying during her pregnancy or childbirth is one in six in the poorest parts of the world. The county has made some remarkable progress in maternal mortality rate by 77% since 2005 compared to the global average of 43%. (BMC, 2021).
Pregnancy-related deaths occur due to limited access to safe abortions, below-par provision of maternal healthcare and deep-rooted gender bias and inequality in the country. In 2011, The Delhi High Court issued a landmark joint decision in the cases of Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors. and Jaitun v. Maternity Home, MCD, Jangpura & Ors. concerning denials of maternal health care to two women living below the poverty line. (Centre for Reproductive Rights) These rulings made the state obligated to provide adequate healthcare, uphold minimum standards of medical care and ensure proper care in medical facilities. Safeguarding Maternal health is not just a necessity but a medical duty which is integral to women’s lives and dignity.
Sexual Right is a Reproductive Right.
In India, Sexual Rights are as much as essential as Reproductive Rights because both are interconnected with each other. Sexual Rights intend to give women the autonomy to make decisions regarding their sexuality and sexual health without any force or harassment. In Sexual Rights, proper usage and knowledge are important. Access to contraception prevents women from having unwanted pregnancies and safeguards them from all the Sexually Transmitted Diseases. While contraception and abortion are legal in India still, many women struggle to access them due to lack of education, societal stigma and pressure regarding abortion and contraception and poor quality of healthcare, especially in the rural parts of the country. The outcome of these barriers often leads to unsafe abortion, untreated infections and maternal deaths.
Martial Rape remains an important issue that needs to be acknowledged under Sexual Rights. Women should have the right to make decisions regarding their sexual activity, i.e. refusing to have sexual intercourse and demanding the use of contraceptives without the fear of violence and coercion. In India, Martial Rape is not recognised as a criminal offence which portrays a lot about this country’s deep-seated gender bias and disregard for women’s autonomy.
Sexual and Reproductive Health Rights (SRHR) is a human right pertaining to sexuality and reproduction. It ensures that both men and women have equal access to Reproductive Health and right to make decisions regarding the same. Despite international bodies like WHO asking governments to invest in SRHR, advancements have been hindered due to inadequate funding, persistent gender discrimination, and openly confronting issues regarding sexuality. (Drishti IAS, 2024)
Judicial Recognition of Reproductive Rights.
Indian Judiciary has played an essential role in reducing the growing discrimination against women regarding their Reproductive Rights. Reproductive Rights for women encompass of safe abortion, access to contraception, maternal healthcare and having the choice to make decisions regarding their bodies. The judiciary has interpreted Article 21 of the Indian Constitution, which guarantees the Right to life and personal liberty to include Reproductive Rights, providing women with autonomy over their reproductive health.
Landmark Judgements such as Suchita Srivastava vs Chandigarh Administration,2009, recognised the right of intellectually disabled women to continue their pregnancy. In Suchita Srivastava, the Supreme Court situated the woman’s right to make reproductive choices within the right to personal liberty under Article 21 of the Constitution of India, 1950. (SCO, 2022) This judgment is only which comes closest in recognising the right of women for their Reproductive autonomy. The courts in India usually permit abortion if there is an exceptional circumstance when many seek relief just to not continue the pregnancy without any emergent situation. The judiciary has to acknowledge that Reproductive Rights are not just merely a health barrier for women but a Fundamental Right for them to make choices regarding their own bodies without unnecessary legal and societal constraints.
Barriers Women encounter to their Reproductive Rights.
Women and girls continue to experience numerous barriers to their right to Reproductive autonomy. To exercise their Reproductive Rights, a lot of challenges occur, especially in a society like India where socially, economically and culturally, the country is confirmed. These hindrances limit women's access to safe abortion and affordable healthcare, resulting in a lack of autonomy and well-being.
In India, the reasons for these barriers are great in number. To start with, the societal stigma which comes with the thought of discussing Reproductive Rights creates a significant barrier. Women face judgment and are shamed for seeking reproductive rights as these issues are considered taboo in the Indian community. Patriarchal norms are often practised in Indian households, leaving women with little to no agency over their bodies. There is a lack of awareness around women in India, especially in low-income communities, regarding Reproductive Rights and healthcare. Socio-economic disparity may also limit women to access quality pre-natal and post-natal healthcare. The coercion, fear of violence, social stigma and discrimination are the pivotal reasons for the lack of Reproductive freedom in the country.
Conclusion
Reproductive Rights are Fundamental Rights in achieving women's empowerment by granting them the freedom to make decisions regarding their Reproductive and Sexual health. Women to lead their autonomous lives. India has taken significant strides towards protecting these rights with rightful laws and judicial decisions; still, they are not enough, and much more needs to be done. The attitude of society towards these rights must evolve, and the outdated societal stigma in this day and age should not dictate a woman’s choices; they need not be entertained. For women to fully exercise these rights, the challenges regarding inadequate healthcare, coercion of women and inequalities which continue to hinder need to be addressed. To recognise and solve these challenges, they need an inclusive approach, which includes advanced healthcare facilities, raising awareness regarding women’s reproductive rights and sexual health and fostering a society where women are allowed to grow, have respect, and their choices are kept in high regard. Reproductive Rights are not just a matter of choice, but it also matters about women’s dignity. Suppose India aspires truly to grow as a fair-minded and impartial country. It can only be done if the societal norms and judgements would stop. In that case, appropriate legal framework and knowledge and accessibility of essential reproductive and sexual health will be provided, and autonomy to make informed decisions about her body and future will be provided freely.
Disclaimer: Kindly note that the views and opinions expressed are of the author(s), not Law Colloquy.
References:-
1. Bhatia, M., Dwivedi, L.K., Banerjee, K, (2021). Statement: Pro-poor policies and improvements in maternal health outcomes in India. [online] BMC Pregnancy Childbirth. Available at:
https://bmcpregnancychildbirth.biomedcentral.com/articles/10.1186/s12884-021-03839-w#:~:text=Since%202005%2C%20India%20has%20experienced,the%20global%20average%20of%2043%25. [Accessed 8 Feb. 2025]
2. Center for Reproductive Rights. Statement: Reproductive Rights in Indian Courts. [online] Center for reproductive rights. Available at:
https://reproductiverights.org/sites/default/files/documents/Reproductive-Rights-In-Indian-Courts.pdf [Accessed 8 Feb. 2025]
3. Center for Reproductive Rights, (2021). Statement: India Passes Abortion Reform but Fails to Undo Barriers to Access. [online] Center for Reproductive Rights. Available at: https://reproductiverights.org/parliament-india-passes-abortion-reform-entrenches-barriers-access/#:~:text=Reproductive%20Rights%20and%20Access%20in,2003%20to%20include%20medication%20abortion [Accessed 8 Feb. 2025]
4. Drishti IAS, (2024). Statement: Sexual and Reproductive Health Rights (SRHR). [online] Drishti IAS. Available at: https://www.drishtiias.com/to-the-points/Paper2/sexual-and-reproductive-health-rights-srhr [Accessed 8 Feb. 2025]
5. Parthasarathy, S. (2022). Statement: When will India see a Landmark Ruling on Abortion? [online] Supreme Court Observer. Available at: https://www.scobserver.in/journal/when-will-india-see-a-landmark-ruling-on-abortion/ [Accessed 8 Feb. 2025]
6. UN Women, (2022). Statement: Reproductive Rights are Women’s rights and human rights. [online] UN Women. Available at: https://www.unwomen.org/en/news-stories/statement/2022/06/statement-reproductive-rights-are-womens-rights-and-human-rights [Accessed 8 Feb. 2025]
