Research Paper

HUMan rights LAW

Reproductive rights of women in

India
INTRODUCTION :
Reproductive rights were established as a subset of the human rights. The Proclamation of
Teheran was the first international document to recognize one of these rights when it stated
that: "Parents have a basic human right to determine freely and responsibly the number and
the spacing of their children." Issues regarding the reproductive rights are vigorously
contested, regardless of the population’s socio-economic level, religion or culture. A series of
human rights treaties and international conference agreements forged over several decades by
governments increasingly influenced by a growing global movement for women's rights —
provides a legal foundation for ending gender discrimination and gender-based rights
violations.

These agreements affirm that women and men have equal rights, and oblige states to take
action against discriminatory practices. The Vienna Declaration and Programme of Action,
the Programme of Action of the International Conference on Population and Development
(ICPD) and the Platform for Action adopted at the Fourth World Conference on Women
(FWCW) are international consensus agreements that strongly support gender equality and
women's empowerment. In particular, the ICPD and FWCW documents, drawing on human
rights agreements, clearly articulate the concepts of sexual and reproductive rights. Thus the
reproductive rights were established as a subset of the human rights at the United Nations
1968 international conference on human rights.

The WHO defines reproductive rights as follows:

“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
information to do so, and right to attain the highest standard of sexual and reproductive
health. They also include the right of all to make decisions concerning reproduction free of
discrimination, coercion and violence.”

Every day, 800 women die due to pregnancy and childbirth-related complications. Some 222
million women in developing countries want to prevent pregnancy but are not using a modern
method of contraception–resulting in 80 million unplanned pregnancies and 20 million unsafe
abortions, with life-threatening consequences. One in three girls under 18 are married without
their consent in low and middle-income countries. Every year, over 16 million adolescent
girls give birth. Meanwhile, maternal mortality is the leading cause of death for this age
group in the developing world. Every day, over 2,000 young people become infected with
HIV. As many as 7 in 10 women experience physical and/or sexual violence in their
lifetimes.1 With such an alarming data we need to go in depth meaning of reproductive rights.

Thus, the right to sexual and reproductive health implies that people are able to enjoy a
mutually satisfying and safe relationship, free from coercion or violence and without fear of
infection or pregnancy, and that they are able to regulate their fertility without adverse or

1
http://www.icpdtaskforce.org/beyond-2014/policy-recommendations.html
dangerous consequences. Sexual and reproductive rights provide the framework within which
sexual and reproductive well-being can be achieved.

Though India has ratified ‘The Convention on the Elimination of All Forms of
Discrimination Against Women’ (1979) [CEDAW], which protects the right of women to
make their own decisions about their fertility and sexuality. But as a nation we have failed to
provide the basic reproductive rights to the women.

Issues regarding the reproductive rights are vigorously contested, regardless of the
population’s socioeconomic level, religion or culture. Reproductive rights include some or all
of the following rights:

1. Right to legal or safe abortion.

2. Right to control ones reproductive functions.

3. Right to access in order to make reproductive choices free of coercion, discrimination and
violence.

4. Right to access education about contraception and sexually transmitted diseases and
freedom from coerced sterilization and contraception.

5. Right to protect from gender based practices such as female genital cutting and male
genital mutilation.

Indian constitution is a social document and ‘grundnorm’ of the nation. India, the world’s,
most populous democracy, constitutes to have significant human rights problems despite
making commitments to tackle some of them most prevalent abuses. The country has thriving
civil society, free media and independent judiciary, but long standing abusive practices,
corruption and lack of accountability for perpetrators factor human rights violation. One of
these perpetrators is violation of liberty and reproductive freedom. The right to reproductive
freedom has become universal fundamental right of life, liberty, equality, privacy and health.
The studies on reproductive rights in India reveal that some socio-economic, cultural and
ethical values play predominant role in determining and controlling reproductive health.

The studies also reveal that due to gender discrimination, violence, coercion and absence of
decision-making, the woman in India is unable to exercise the reproductive rights. Apart from
these, child marriages, low level of education, early pregnancies, non-access of contraception,
inadequate medical care etc., are causative factors for failure of self-determination and
reproductive rights of woman. This paper explores some issues of affirmative obligation of
the state and individual rights, consequences of health regulations, the impact of state’s
support on the ability of woman in decision-making and enjoyment of reproductive rights and
contribution of Indian Judiciary for development of health care justice.
OBJECTIVES OF THE RESEARCH PAPER:

The research paper aims at enlightening the readers about the reproductive rights of women
with respect to Indian context focusing on socio economic and cultural aspects. Also it aims
to highlight the sensitization of government and judicial agencies in protecting the
reproductive rights, including focus on protecting the reproductive rights of people with
disability (mental illness and mental retardation).

The description of the paper is based on the social and legal position of women especially in
India. The stereotype position of women and the changing dimension of women’s struggle for
their rights in modern world has made this area of research more interesting. The present
work also focuses on the unseen area of women’s struggle for their right especially
reproductive rights. A theoretical analysis is presented and a special importance is given to
women’s rights and this idea is supported by various approaches of the topic in the literature.

The researcher aims to examine the consequences of certain provisions & the implementation
of the existing laws with respects to the reproductive rights of women in India & will also
suggest appropriate changes by analyzing similar provisions of existing legislation etc.

This research paper emphasizes the need for modern & simpler and more women-friendly
laws with respect to their freedom of choice of reproduction etc. in India.

The paper briefly discusses about various changes that the legislators are trying to make and
what basically constitutes these changes, also what are the effects which these new provisions
will have on the position of women in the Indian society.

The researcher has followed the Doctrinal type of research for this research paper and the
research methodology of Content Analysis is employed.

In a way a sincere effort has been made to collect all relevant information available on the
topic and to make it clear and help the readers to understand each and every aspect of the
research.

.
REPRODUCTIVE RIGHTS AS HUMAN RIGHTS :
Since most existing legally binding international human rights instruments do not explicitly
mention sexual and reproductive rights, a broad coalition of NGOs, civil servants, and experts
working in international organizations have been promoting a reinterpretation of those
instruments to link the realization of the already internationally recognized human rights with
the realization of reproductive rights. An example of this linkage is provided by the 1994
Cairo Programme of Action2:

"reproductive rights embrace certain human rights that are already recognized in national
laws, international human rights documents and other relevant United Nations consensus
documents. These 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. It also includes the right of all to make decisions
concerning reproduction free of discrimination, coercion and violence as expressed in human
rights documents. In the exercise of this right, they should take into account the needs of their
living and future children and their responsibilities towards the community."

Building upon these developments are two new instruments that explicitly recognize
women’s reproductive rights. The Convention on the Rights of Persons with Disabilities
(CPRD) is the first comprehensive international human rights instrument to specifically
identify the right to reproductive and sexual health as a human right. India has ratified CPRD
on October1, 2007 and the contents of the same are binding on our legal system.
Reproductive rights have also recently been incorporated into the international development
agenda. With the adoption of the UN Millennium Development Goals (MDGs) in 2000,
governments have agreed that addressing women’s reproductive health is key to promoting
development. In the document produced at the 2005 World Summit, leaders from around the
world made an explicit commitment to achieving universal access to reproductive health by
2015.3

Similarly, Amnesty International has argued that the realization of reproductive rights is
linked with the realization of a series of recognized human rights, including the right to
health, the right to freedom from discrimination, the right to privacy, and the right not to be
subjected to torture or ill-treatment. However, not all states have accepted the inclusion of
reproductive rights in the body of internationally recognized human rights. At the Cairo
Conference, several states like UAE, Libya, Kuwait, Peru, Jordan, Iran etc have made formal
reservations either to the concept of reproductive rights or to its specific content.

2
http://www.hrln.org/hrln/training-and-development/about-ccri/433.html
3
United Nations General Assembly, 2005 World Summit Outcome, U.N. Doc A/Res/60/1 (2005)
12 Human Rights key to Reproductive Rights

1) Right to Life

2) Right to Liberty and security of person

3) Right to health, including sexual and Reproductive health

4) Right to decide the number and spacing of children

5) Right to consent to marriage and to equality in marriage

6) Right to privacy

7) Right to equality and non-discrimination

8) Right to be Free from practices that harm Women and girls
9) Right to not be subjected to torture or other cruel, inhuman, or degrading treatment or
punishment
10) Right to be Free from sexual and gender-Based violence
11) Right to access sexual and Reproductive health education and Family planning
information
12) Right to enjoy the benefits of scientific progress

Reproductive rights also includes the right to abortion, in Roe v. Wade the Court created a
right to abortion based on much more than bodily concerns:

“Specific and direct harm medically diagnosable even in early pregnancy may be involved.
Maternity, or additional offspring, may force upon the woman a distressful life and future.
Psychological harm may be imminent. Mental and physical health may be taxed by child
care. There is also the distress, for all concerned, associated with the unwanted child, and
there is the problem of bringing a child into a family already unable, psychologically and
otherwise, to care for it. In other cases, as in this one, the additional difficulties and
continuing stigma of unwed motherhood may be involved.”
INDIA’S PERSPECTIVE :
The Indian perspective on reproductive rights has had to additionally take account of several
other inequalities and contradictions in society. In a situation where women have no ‘right’ to
clean drinking water, basic facilities, health care or education; where society decides where
women will live, how they will live (and often, how they will die), who they will marry,
whether they will study; where the State (and international development and aid agencies)
believe they have the ‘right’ to determine how many children women will bear, when they
will get sterilized and what form of contraception women must ‘opt’ for; it is apparent that
the struggle for Indian women’s reproductive rights needs to go further than reproductive
freedom, and enter the arena of social, economic and political rights.

Though India is a signatory to the CEDAW and, has committed itself to ethical and
professional standards in family planning services, including the right to personal
reproductive autonomy and collective gender equality. Indian policies and laws so far seem to
reflect this understanding, at least on paper. The National Population Policy, 2000, affirms
the right to voluntary and informed choice in matters related to contraception. The
legislations are Maternity Benefit Act, 1961 (No. 53 of 1961), Medical Termination of
Pregnancy Act, 1971 (No.34 of 1971), Pre-Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) 1994 (No. 57 of 1994), Infant Milk Substitutes, Feeding
Bottles and Infant Foods (Regulation of Production Supply and Distribution) Act, 1992
(No.41 of 1992) etc.

Under the Indian Constitution the Reproductive Rights can be dealt under Article 14(Equality
before Law), Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex
or place of birth), Article 21 (Protection of life and personal liberty), Article 38 (State to
secure a social order for the promotion of welfare of people), Article 39(Certain principles of
policy to be followed by the State) and Article 42(Provision for just and humane conditions
of work and maternity relief).

In the case of Laxmi Mandal vs Deen Dayal Hari Nager Hospital & Ors4Justice Muralidhar
instructed the State of Haryana, to pay compensation of Rs 2.4 lakhs to the family of Shanti
Devi who passed away during child birth. The Court found the Respondents in violation of
Shanti Devi's right to life and health, reiterating that her death was preventable.

In the case of Jaitun v Maternity Home, MCD, Jangpura & Ors5 High Court directed the
Municipal Corporation of Delhi and Government of National Capital Territory of Delhi to
pay Rs 50,000 compensation to Fatima for the violation of her fundamental rights by being
compelled to give birth to her daughter under a tree, on account of the denial of basic medical
services.

4
172(2010)DLT9
5
W.P. No. 10700/2009
Justice Muralidhar said "These petitions are essentially about the protection and enforcement
of the basic, fundamental and human right to life under Article 21 of the Constitution. These
petitions focus on two inalienable survival rights that form part of the right to life: the right to
health (which would include the right to access and receive a minimum standard of treatment
and care in public health facilities) and in particular the reproductive rights of the mother.”6

The famous case of Suchita Srivastava and Anr.Vs.Chandigarh Administration7 held that a
woman's right to make reproductive choices is also a dimension of 'personal liberty' as
understood under Article 21 of the Constitution of India. 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 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. However, in the case of pregnant women there is also a 'compelling state
interest' in protecting the life of the prospective child. Therefore, the termination of a
pregnancy is only permitted when the conditions specified in the applicable statute have been
fulfilled. Hence, the provisions of the MTP Act, 1971 can also be viewed as reasonable
restrictions that have been placed on the exercise of reproductive choices.

This case was reaffirmed in Delhi High Court in X (Assumed name of the prosecutrix) Vs.The
State (N.C.T. of Delhi) and Ors8. The reproductive right of humans should be treated as a
basic right. For instance,in B. K. Parthasarthi v. Government of Andhra Pradesh9, the High
Court upheld “the right of reproductive autonomy” of an individual as a facet of his “right to
privacy” and agreed with the decision of the US Supreme Court in Jack T. Skinner v. State of
Oklahoma, which characterised the right to reproduce as “one of the basic civil rights of
man”.

6
http://hrlnindia.blogspot.in/2010/06/hrln-gets-remarkable-judgement-in-case.html
7
AIR2010 SC 235
8
2013(2) JCC 1068
9
1999 (5) ALT 715
Experience in Implementation of Reproductive Rights
and Choices :
 The policies and services :-
Nineteen ninety eight analysis of seven states shows that implementation of the target – free
approach varies considerably across states, with some states unwilling or unable to abandon
targets. Field level assessment indicate that entrenched attitudes among policy makers and
service providers have been difficult to change as illustrated by the following quote from
physician at the community health centre: The government says that family planning should
be left to free choice, but I don’t understand why it is wrong to put pressure on women from
poor families”. Although the policy goal is to provide greater choice in family planning
methods, the promotion and availability of spacing methods continues to be limited. Data
from 1990s document shows that it is only within limited number of highly urbanized centers
that Indian women have range of contraceptive options available.

In poor, rural areas especially, contraceptive supplies primary health centers and sub centers
are frequently inadequate or lacking altogether. The choices for contraception are very
limited at rural centers. For e.g. either you have option to undergo tubectomy or laparoscopic
sterilization based on the proximity of the rural center to the district head quarter. Specialists
who conduct sterilization prefer to move to nearest center for conducting camps than remote
areas. This has forced the people to accept only available option and not to choose method of
their choice. In true sense it has curtailed the reproductive rights of the individuals. Even
when official policy encourages the provision of options to women, service providers often
do not practice principles of informed choice. Data from national family health survey
(NFHS 2) indicate only 40 % of women remember ever discussing family planning with a
health worker, only 10 % had ever discussed the pill, and even fewer have other temporary
methods.

Only 15% of those who use modern contraceptive were informed about an alternative
method. The Medical termination of pregnancy (MTP) act made abortion legal in India in
1972, but vast majority of women gets abortions outside this legal frame work. In part, this is
due to the inherent restrictions regarding registered facilities and doctor consent built into by
providers and even poorer understanding among women regarding their legal rights. While
official records indicate that somewhere between 550,000-600,000 induced abortions take
place in the country per year, recent publications suggest estimates close to 7 million induced
abortions per year.
  Social Context :-
India has a vibrant women’s movement and strong presence of grass root NGOs committed to
bringing rights and choice to women. At the same time, large proportions of women continue
to face social and domestic pressures and constraints that limit their ability to formulate and
act on reproductive decisions. In particular, the continued strength of son preference is well
documented; 33% of women would like to have more sons than daughters with 85% of
women wanting at least one son. What we need to understand from this is, though
reproductive right is very much specific to the couples, but in Indian context it is the
collective decision of the family. Extrapolation of such rights to Indian social context needs
careful examination.

 Spousal consent for abortion and sterilization :-

The right to make free and informed decisions about health care and medical treatment,
including decisions about one’s own fertility and sexuality, is enshrined in Articles 12 and 16
of the Convention on the Elimination of all Forms of Discrimination Against Women (1978).
Autonomy, the right to informed consent and confidentiality are considered the fundamental
ethical principles in providing reproductive health services. Autonomy would also mean that
when a mentally competent adult seeks a health service, there is no need for an authorization
from a third party.

According to recent ethics guidelines in reproductive health research, even use of the term
“consent” has been restricted only to the person who is directly concerned; in circumstances
where partners are involved it is termed a “partner agreement” Contrary to this Supreme
Court judgment when hearing an appeal in the Ghosh vs. Ghosh10 divorce case, the court
ruled on March 26, 2007:

“If a husband submits himself for an operation of sterilization without medical reasons and
without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy
(read tubectomy) or abortion without medical reason or without the consent or knowledge of
her husband, such an act of the spouse may lead to mental cruelty.”

The court also ruled that a refusal to have sex with one’s spouse and a unilateral decision to
not have a child would also amount to mental cruelty. Considering the circumstances of the
case, the court granted a divorce. The judgement has serious implications for reproductive
health services in India, because it mandates spousal consent for induced abortion and
sterilization. The judgement conflicts with the existing guidelines for medical practice, and it
is likely to confuse those who are seeking as well as offering these services. It implies that
when a woman seeks abortion or sterilization on her own and if her husband is not informed
or does not consent, the very act of the woman could be cited by her husband as mental
cruelty and grounds to seek a divorce.

10
Samar Ghosh versus Jaya Ghosh, Appeal (civil) 151 of 2004.
The judgement thus hits at the very core of reproductive rights: taking a decision and seeking
a service without fear of coercion or violence. It is likely to set a wrong precedent and put
many providers on guard, because they would not want to be involved in legal tangles. Many
clinics may start using this ruling to impose a requirement of spousal consent. Even providers
in the public sector may insist on a spouse’s signature to avoid legal problems. The highest
judiciary in the nation has to demonstrate a better understanding and commitment to human
rights, especially women’s rights.

 Reproductive Rights in Mentally Retarded Women :-

In India, a disabled girl-child is usually at the receiving end of a lot of contempt and neglect.
Women with disabilities have been consistently denied their rights. Nineteen year-old
mentally challenged orphan girl at Nari Niketan, Chandigarh, a government institution for
destitute women, was raped sometime in March 2009 on the premises by the security guards.
In May 2009, the pregnancy was detected. Four-doctor Multi Disciplinary Medical Board
which included a psychiatrist recommended that woman "has adequate physical capacity to
bear and raise the child but that her mental health can be further affected by the stress of
bearing and raising her child." Based on these recommendations, the Punjab and Haryana
High Court ruling ordered medical termination of pregnancy (MTP)11.

On the NGO appeal against the High courts order, the Supreme Court (SC) of India gave a
landmark decision allowing a 19-year-old mentally challenged orphan girl to carry on with a
pregnancy resulting from a sexual assault. This case thus raised fundamental issues relating to
consent and to the support required while assessing consent. This case was not about abortion
per se, it was about whether the law of this country recognizes and protects the agency of a
woman to take decisions for her life and body, especially all its nuances when the woman is a
person with mental retardation (MR) or any other disability."

Legally, Medical Termination Of Pregnancy (MTP) Act does not deal with access to abortion
of women with MR, and that it wrongly distinguishes between women with mental
retardation and mental illness, leaving the former out totally. Also that the Act does not
understand that both these kinds of women are more likely than not to be destitute, in which
case guardianship is not that simple. Since SC has gone ahead to continue pregnancy but has
failed to address support mechanism and state's accountability for creating and sustaining
comprehensive and reliable support systems for her within a rights framework an obligation
under Article 12 of the UN Rights of Persons with Disabilities Convention. This case
indicates eloquently that the Indian legal framework has to be strengthened a great deal to
bring it in line with international legislation. It also raises the question whether our
government institutions are safe enough to protect women and more so people with
disabilities.

11
Kamayani Bali Mahabal. Women/choice, Abortion law's grey zone: retarded mothers. Published in India-
Together 14 Aug 2009
EQUALITY, LIBERTY AND PRIVACY - INDIAN
CONSTITUTION
The edifice and super structure of the Constitution is based on four important pillars i.e.,
Justice, Liberty, Equality and Fraternity. Through Judicial process the provisions of the
Indian Constitution has brought a new dimension to sexual and reproductive rights in India.

 EQUALITY :
The preamble of the Constitution speaks of equality of status and opportunity. The first and
the foremost right which guaranteed to all the persons are right to equality. The principle of
equality runs like a golden thread throughout the Constitution. Article 14 declares that ‘the
State shall not deny to any person equality before law or the equal protection of the laws
within territory of India’. Article 15 specifically prohibits discrimination on the grounds of
sex. “Equality is a dynamic concept with many aspects and dimensions and it cannot be
‘cribbed, cabined and confined’ within traditional and doctrinaire limits. From a positivistic
point of view, equality is antithesis to arbitrariness. In fact, equality and arbitrariness are
sworn enemies; one belong to the rule of law in a republic while the other, to the whim and
caprice of an absolute monarchy. Where an act is arbitrary, it is implicit in it that it is unequal
both according to political logic and constitutional law and therefore violative of Article
14.”12

The Concept of equality, right to marriage and liberty for procreation has been categorically
explained by the Supreme Court in two land mark rulings. In C.B. Muthamma13, a service
rule requiring a female employee to obtain written permission of the government before the
solemnization of her marriage and denial of right to be promoted on the ground that she was a
married women, was held to be discriminatory. On the same note the validity of Air India
Regulation under which an air hostess could be retired at the age of 35 years or if they got
married within 4 years of their service or on first pregnancy was challenged in the famous
Air India case.14 The court held that the provision relating to pregnancy bar and retirement at
the option of Managing Director, were unconstitutional as being unreasonable, arbitrary and
violative of Article 14. However it upheld the validity of provision prohibiting the air hostess
to marry within 4 years of their service as there was no unreasonableness and arbitrariness in
that provision.

12
E.P. Royappa v State of Tamil Nadu, AIR 1974 SC 555. This ruling was followed in Maneka Gandhi v Union
of India, AIR 1978 SC 597 and R.D. Shetty v Airport Authority, AIR 1979 SC 1628.
13
(1979) 4 SCC 260
14
Air India v Nergesh Meerza (1981) 4 SCC 335
  LIBERTY AND PRIVACY :
The evolution of the individual as an ultimate measure of things is a universally accepted
standard of democratic society. But the concept of society based on well-defined rights is a
special idea of democracy. The main function of democratic government is to safeguard the
liberty. In fact, the greatest heritage of democracy to mankind is the right of personal
liberty.15 Article 21 of the Constitution mandates ‘No person shall be deprived of his life or
personal liberty except according to procedure the established by law.’ The procedure
prescribed by law has to be fair, just and reasonable not fanciful, oppressive or arbitrary.16
Reiterating the same view the Court in Francis Coralie v Union Territory of Delhi17, said that
the right to live is not restricted to mere animal existence. It means something more than just
physical survival.

The right to ‘live’ is not confined to the protection of any faculty or limb through which life
is enjoyed or the soul communicates with the outside world but it also includes “the right to
live with human dignity”, and all that goes along with it, namely, the bare necessities of life
such as, adequate nutrition, clothing and shelter and facilities for reading, writing and
expressing ourselves in diverse forms, freely moving about and mixing and commingling
with fellow human being. Through judicial process the Right to health18, education19,
protection against injurious drugs20, X-ray radiations21 and pollution-free environment22,
livelihood23, shelter24 has been included in life as defined under Article 21 of the
Constitution. Further, the court in India has regarded this article as one of the luminary
provisions of the Constitution apply to protection of woman from sexual and reproductive
abuses.

15
Fitzgerald P.J., Salmond on Jurisprudence.
16
Maneka Gandhi v Union of India, AIR 1978 SC 597.
17
AIR 1981 SC 746.
18
Parmananda Katara v Union of India, AIR 1989 SC 2039, Vincent Parikurlangara v Union of India (1987) 2
SCC 165, Consumer Education & Research Centre v Union of India, (1995) 3SCC 42: AIR 1995 SC 922.
19
Mohini Jain v State of Karnataka, AIR 1992 SC 1858; Unni Krishnan J.P. v State of A.P., (1993) I SCC 645:
AIR 1993 SC 2178, Mohini Jain v State of Karnataka, AIR 1992 SC 1858, TMA Pai Foundation v State of
Karnataka, AIR 2003 SC 355.
20
Vincent Parikurlangara v Union of India (1987) 2 SCC 165.
21
M.K. Sharma v Bharat Electronics Ltd., (1987) 3 SCC 231: AIR 1987 SC 1791.
22
M.C. Mehta v Union of India, (2006) 3 SCC 399: AIR 2006 SC 1325.
23
Olga Tellis v Bombay Municipal Corpn. (1985) 3 SCC 545: AIR 1986 SC I80.
24
Gauri Shanker v Union of India, (1994) 6 SCC 349: AIR 1995 SC 55; Shiv Sagar Tiwari v Union of India,
(1997) I SCC 444: AIR 1997 SC 2725.
LIBERTY TO ABORT :
An abortion is a procedure that is done to terminate a pregnancy. Before liberalization of
abortion law in India, the Indian Penal Code was regulating the offences relating to causing
miscarriage, concealment of birth and other related issues of abortion. Provisions deal with
causing miscarriage, causing miscarriage without woman’s consent: death caused by an act
done with intent to cause miscarriage without woman’s consent; act done with intent to
prevent child being born alive, or to cause it to die after birth; or causing death of a quick
unborn child by an act amounting to culpable homicide, the exposure and abandonment of
child under 12 years of age by parent or person having care of it, concealment of birth by
secret disposal of dead body are some of the problems dealt with under the provisions of the
Indian Penal Code.

The above legal frame work regarding the termination of pregnancy in the Indian penal Code
which were enacted about a century ago were drawn up in keeping with the then British Law
on the subject. Abortion was made a crime for which the mother as well as the abortionist
could be punished except where it had to be induced in order to save the life of the mother. It
is observed that in a large number of cases all over India the penal law is not strictly
followed.

The liberalized law known as Medical Termination of Pregnancy Act (1971): States that a
woman has right to medical termination of abortion up to 12 weeks (1 doctor) and 20 weeks
(2 doctors) if giving birth would be cause unjust physical or mental harm to the women or the
child would be born with severe defects.

In India, abortion was legalised by the Medical Termination of Pregnancy Act, 1972. Yet,
even today, a majority of women do not have access to safe abortion services. Legal abortion
services are not easily accessible, and women continue to resort to unsafe practices and self-
induced abortions, making a mockery of the legalisation of abortion. Studies estimate that
there are 2.2 illegal abortions for every legal abortion. Moreover, legalising abortion has, and
continues to clearly be a tool for coercive population control.

Unsafe abortion is a major cause of death and health complications for women of child-
bearing age. Although it is difficult to get data on illegal abortions, it is estimated that world-
wide, one-third of all abortions are illegal. 20 million unsafe abortions are performed
annually, and estimates of the number of women who die from unsafe abortions all over the
world range from 70,000-200,000 each year. While fighting for the women’s right to safe
abortion, the women’s movement has also cautioned women about the dangers of repeated
abortions. Making safe and reliable contraceptives available to all women, including
adolescents, would go a long way in reducing the need for abortion.
Some facts related to abortion are really shocking such as :-

 1/5 of pregnancies in India are unwanted or unplanned.

 In India 2/3 of all abortions are unsafe – infertility, death; Contributing to MMR.
 Every hour, 8 women and girls die from unsafe abortions; About 18,000 women a
year.

LATEST JUDGEMENT :
05.10.17 - (PRESS RELEASE) This week the Supreme Court of India denied a rape survivor
living with HIV from seeking an abortion.

In its ruling, the Supreme Court bench rejected the abortion plea due to her being 26 weeks
pregnant and as a result of the recommendation it received from a court-appointed medical
panel that indicated that an abortion at this stage of pregnancy posed a risk to the lives of the
woman and the foetus. The woman learned of her pregnancy and HIV status in January 2017
and initially requested an abortion while at 17 weeks of pregnancy. After significant delays,
both the government hospital and the high court in Bihar denied her request for legal abortion
services, resulting in her appeal to the Supreme Court.

When the petitioner in this case went to the government hospital for an abortion, the hospital
required her to provide the consent of her husband and father, despite the fact that there is no
such requirement under the law and her pregnancy had resulted from rape. Even after her
father consented to the abortion, the hospital did not end the pregnancy. She later appealed to
the high court of Bihar, which denied her request.

In its decision, the Supreme Court asked the Bihar government, where the woman resides, to
provide monetary compensation for the delays they caused, which ultimately led to her being
denied an abortion even though she had requested it within the legal limit.

“This case clearly demonstrates the urgent need for India to immediately reform its
abortion laws and issue guidelines to ensure every woman’s decision to end a pregnancy
is respected.”
Reasons for the slow growth and development of
reproductive rights :
There are various social, cultural, and economic factors which are responsible for the lack of
awareness and recognition of reproductive rights of women in India. Few such factors are
underlined below:-

 Gender Inequality -
Gender is socially and culturally imbibed in any society. In studying demographic figure it is
clear that fertility, mortality and migration mostly consider women as child bearer. In a
patriarchal society like India women have hardly any choice in procreation. As reproduction
exist in close interrelation with social, cultural and political context without having condition
for gender equality it is not possible for women to enjoy and exercise reproductive rights.
There is no doubt that women are silent victim in the society. The percentage that shows
unequal sex ratio and higher female infant mortality rate in large part of our country reflect
the general devaluation of women.

A female literacy rates lags far behind than that of males in most states. Gross enrolment ratio
suggests that even in the 1990s only 88 percent of all girls aged 6 to 10 (compared to over
100 percent of all boys) are enrolled in school. Only about one in three girls 6-14 actually
attended school comparing to about three in five boys. There is no denying that one of the
reasons for poor reproductive health of Indian women is gender discrimination. The reasons
of gender discrimination is complex and diverse such as poor status of women in the family,
attitude of the people, low level of education, limited access to resources, cultural norms, etc.

 Health Care Programme -

The health care program is limited to the Primary Health Care approach. The health care
programmes made for women are maternal and child health services, reproductive and child
health project and the family welfare programme. These programmes aim at providing better
reproductive services encouraging institutional deliveries and spacing between the children.
These programmes also take initiative to provide health education. However, despite these
programmes there has been decline in the sex ratio. Health and family planning services have
not been sensitive to the situation of women or to their problems. It is true that women are
facing problems in seeking and expressing their health care issues.

The main problem in India is that family planning programme is concentrated on population
and lacks health care services and health education. The fact that India is second largest
populated country in the world where the population has increased from 36 crore in 1951 to
over 102 crore in 2001 has worried everyone including government. An uncontrollable
population explosion has become the obstacle for country’s progress. The government was so
much occupied with population explosion that it has totally forgot the importance of good
health of the mother for the good health of the infant.
  Pre-natal and post-natal care -
Unsafe motherhood is a reality in India especially in rural parts. Few women get facilities
during pregnancy and delivery. Lack of care during pregnancy and child birth including
both the obstetric conditions and gynecological conditions is not uncommon here. About
92 percent women suffer from gynecological disorders such as- genital tract infections,
urinal track infection etc. out of these only 8 percent undergo for gynecological
examination and treatment. Women hardy have access to antenatal care, high risk cases
go undetected, anemia is acute during pregnancy and nutritional knowledge of health and
nutrition needs during pregnancy and post natal period are poorly understood. The
modern health facilities are beyond the reach of common people.

 Health Care / Medical facilities -

In India, medical facilities are poorly equipped to deal with reproductive health
problems. It concentrated only on immunization and provision for iron and folic acid
rather than on sustained care of women during pregnancy and after delivery. In
traditional family there is no excuse for women. They have to take care of domestic work
and sometime they even go to the field work to support the family financially.
In the case of Dunabai vs. State of MP and Ors.25 [PIL], Fact-finding in tribal area
where an adavasi woman had no choice but to give birth outside a hospital after repeated
denial of medical treatment. Govt health facilities functioned without blood, emergency
obstetric facilities, basic medicines, adequate staff. The High Court ordered state
institutions to make immediate and specific changes regarding staff, medicines,
equipment and facilities that would bring them up to the prescribed standards. The Court
also ordered that the semi-government monitoring committee that had initially found
violations to investigate to ensure that the Court orders were complied with.
Similar situation arose in the case of Priya Kale v. NCT of Delhi & Ors26. ( 2013), In
January 2013 the Times of India published an article about Priya Kale, a homeless
woman who lost her baby to exposure after she delivered on the balcony of the homeless
shelter where she lives. A fact finding was conducted at the shelter. Families, including
pregnant women live in absolute squalor and struggle to provide food to their families.
A petition was filed in asking the court to issue immediate interim orders in the case for
(1) maternal health care; (2) heaters; (3) hot water heaters for bathing; (4) three meals a
day for all residents etc.

25
Writ Petition No. 5097/2011
26
Writ Petition (C) 641 of 2013
SUGGESTIONS :
There is an urgent need to support public education campaigns and community mobilization
on human rights and laws related to sexual and reproductive rights to foster understanding of
human sexuality as a positive aspect of life; create cultures of acceptance, respect, non-
discrimination and non-violence; eliminate gender discrimination and violence against
women and girls; and engage men, policy-makers and law enforcers, parliamentarians,
educators and health providers, employers, the private sector and journalists, in creating an
enabling environment for the equal enjoyment of these rights by all.

There should be amendment in the existing laws and policies that respect and protect sexual
and reproductive rights and enable all individuals to exercise them without discrimination on
any grounds, regardless of age, sex, race, ethnicity, class, caste, religious affiliation, marital
status, occupation, disability, HIV status, sexual orientation or gender identity, among other
factors.

Men also have reproductive health needs, and the involvement of men is an essential part of
protecting women's reproductive health. Providing quality reproductive health services
enables women to balance safe childbearing with other aspects of their lives. It also helps
protect them from health risks, facilitates their social participation, including employment.
Reproductive health does not affect women alone; it is a family health and social issue as
well. Gender-sensitive programmes can address the dynamics of knowledge, power and
decision-making in sexual relationships, between service providers and clients, and between
community leaders and citizens.

A gender perspective implies also that institutions and communities adopt more equitable and
inclusive practices. As the primary users of reproductive health services, women have to be
involved at all levels of policy-making and programme implementation. Policy makers need
to consider the impacts of their decisions on men and women and how gender roles aid or
inhibit programmes and progress towards gender equality.
CONCLUSION :
Through this project I conclude that still India has not been able to promote the reproductive
rights of women and lacks concrete efforts and legislations for the protection of this right.
Human rights include sexual and reproductive rights which are now an inseparable part of the
woman’s life. Women have a right and choice with respect to their health and lives.
Reproductive health and right to reproductive health is not only women issue it is a family
health and social issue. The ultimate aim of the right to reproduction is well being of the
family and individuals. At the same time it becomes the responsibility of the governments to
give quality reproductive health care and protect the individual reproductive rights while
being sensitive to local and cultural issues.

There is increased need for sensitization of the judicial and government while protecting the
reproductive rights of people with disability especially mental retardation and mental illness.
There is also increased need for sensitization of judicial system on process of consent to
abortion. To ensure quality reproductive health services, there is need for active community
participation and involvement of men (spouse).

The national laws in India have not considered reproductive rights specifically in any of its
law. However, social legislations like The Prohibition of Child Marriages Act, 2006, The
Medical Termination of Pregnancy Act, 1971 and Pre-Conception and Pre-Natal Diagnostic
Techniques Act, 1994 are examples of modest and sincere attempts to protect the
reproductive rights of women. These legislations are well articulated and designed to protect
healthcare justice in general and reproductive rights in particular. Poverty, social norms,
illiteracy, wrong doctrines, preference of son over the daughter, forced prostitution, forced
pregnancy, other harmful practices and traditions and state’s inability in implementation of
laws are some of the reasons for failure of the constitutional vision of liberty, equality and
privacy. In the Constitution of India, right to health has been so generally worded, that it took
a long time to consider right to health as a Fundamental Right.

It was only through judicial process the right to healthcare and reproductive rights has been
brought into the ambit of personal liberty. Therefore, India needs right based approach to
reproductive healthcare justice. Further, the State should encourage dialogue and
collaboration between women organizations, healthcare groups, NGOs and Judges to utilize
the legal system more effectively and efficiently.

There is a urge to have legislation as Reproductive Rights (Protection) Act in order to protect
and promote reproductive rights of women and to look after all the issues of reproductive
health of women whether it is as regard to providing medical facilities or creating awareness
or having health policies and programmes concerning women. Reproductive right is to be
placed in a central point in the priority of government in order to promote the status of
women and to protect her rights.
BIBLIOGRAPHY :

 PRIMARY SOURCES:

A. National Commission on Population Government of India National Population

Policy, 2000
B. United Nations International Conference on Population and Development (ICPD) 5-
13 September 1994
C. The Human Rights: Conventions and Indian Law- By U.N. Gupta

 SECONDARY SOURCES:

A. Gupta Agnihotri Jyotsna New Reproductive Technologies, Women’s Health and

Autonomy: Freedom and Dependency? Sage Publication New Delhi 1st Edition 2000.
B. Sex Selective Abortion in India (Sage Publication New Delhi 1st Edition1205 (2007).