‘Reproductive freedom is critical to a whole range of issues. If we cannot take charge of this most personal aspect of our lives, we cannot take care of anything. It should not be seen as a privilege or as a benefit, but a fundamental human right.’
– Faye Wattleton
Abstract
Reproductive rights are an umbrella term which includes an array of issues under it, such as abortion, contraception, child spacing, sex autonomy, reproductive health services, sex education, information about one’s reproductive body etc. These rights are not just a matter of health. It has always been a fiercely debated topic because there are moral, ethical, religious, political facets of this issue. Different aspects of these rights like Abortion, Men’s rights, non-cis gender rights, the Political Dimension, Public Healthcare System have been discussed from the Indian perspective. The data referred to in the paper shows how much room there is for improvement. The shortcomings of the acts and the systems have been discussed and suggestions have been given to bridge these gaps.
Keywords – Reproductive Rights, Abortion, Healthcare, Body Autonomy, Gender Equality.
Introduction
India was one of the first nations to develop a legal framework regarding abortion and reproductive autonomy, but today, we stand nowhere at par with the distinction of becoming one of the firsts. Reproductive rights in India have not been created holistically to cover all the aspects. The ones that are in place, cannot be fully exercised by its beneficiaries due to the absence of essential facilities, reducing these rights to just ‘black letter law.’ India is having one of the highest maternal mortality rates in the world (which UNICEF India and World Bank data put at an estimated 45,000 maternal deaths every year, or an average of one maternal death every 12 minutes) and unsafe abortions are one of the major causes of it. In India, unsafe abortions constitute the third-leading factor in maternal fatalities. According to research by The Lancet, one third of pregnancies in India are aborted. The percentage of abortions performed in public or private health facilities is only 22%. [1] India also has the highest rate of child marriages worldwide.
Research Methodology
The empirical, descriptive, and quantitative data-based analysis has been used to write this research paper. Due to the lack of primary sources, secondary sources have been referred to. This included cases, articles, survey reports and governmental and non-governmental data bases.
Review of literature
Research papers, articles, judgements have been referred to for the completion of the paper.
- A research conducted by The Foundation for Reproductive Health Services India named ‘Medical Termination of Pregnancy Act 2021: A Study to Understand Awareness’ – helped me understood the ground realities of access to abortion and other reproductive rights. Making laws and statues alone is not enough, for the proper implementation of them, awareness and education on reproductive rights becomes extremely crucial.
- A research paper published by the University of Wollongong named – Women reproductive rights in India: prospective future helped me understand the reproductive rights with a focus on socio-economic and cultural consent. I also got some insights on the role of the government and the judiciary in protecting these rights and sensitizing people on the same.
- Other than these sources, many newspaper articles and online websites were referred to for the analysis of the reproductive rights in India.
Abortion
Abortion is the removal of the foetus from the pregnant person’s body before it has reached the stage of maturity, in simple words it is intentional termination of pregnancy. It is one of the most talked about issue under reproductive rights. Before 1971, there was no provision for abortion in India, rather it was criminalized by the British under the section 312 of the Indian Penal Code. Under this section, a woman was sentenced to imprisonment for 3 years, or with fine, or with both for performing abortion for any purpose other than saving the life of the woman. The Shantilal Shah Committee in 1966 recommended a legislation regulating and legalizing abortion in India. The constitution was amended to incorporate the Medical Termination of Pregnancy Act in 1971. So, this was even two years before the famous Roe vs. Wade judgement which legalized abortion in America. Recently in 2022, almost after 50 years the judgement was overturned by Dobbs v. Jackson Women’s Health Organization which led to an uproar in America. This 1971 act had various shortcomings like the ceiling was up to 20 weeks of pregnancy, applied only to married women. An amendment was there in the act in 2002 but it was not of much significance. Taking all the shortcomings of the act into consideration, the Medical Termination of Pregnancy (Amendment) Act 2021 was introduced. It aims to expand access of women to safe and legal abortion services on therapeutic, eugenic, humanitarian, or social grounds. All the important takeaways are highlighted in the photograph above.
Figure – 1[2]
But the real question is it living up to its namesake, to all that it claims to achieve? A study conducted by FRHS [3] says nearly 95.5% of the women are unaware of the MTP (Amendment) Act, 2021. If such a huge number of women are unaware about the rights, its gravely impractical to think that the law is reaching its beneficiaries.
The act underlines the aspect of medical liberalization, it says that it aims to provide greater autonomy to the women. Though these provisions to an extent have made an endeavour in legalising the medical termination of pregnancy, however, the decision to grant the permission only rests on the doctor’s opinion. Instead of giving women the Right to Safe abortions, these provisions strip them of the agency over their own bodies.[4] One such example is the case of Shri Bhagwan Katariya And Others vs State of M.P, wherein the doctor performed the abortion without the consent of the pregnant person, solely relying on the opinion of her family members. These irresponsible actions leave a permanent scar on the heart of the pregnant person. Hence, judiciary plays a very important role in interpreting and bringing clarity to such ambiguous provisions. [5]
The act allows termination after 24 weeks only in case of substantial foetal abnormalities. This means a case of rape or some other genuine issue can only be aborted through the long and cumbersome judicial procedure of writ petition. One such case came up, where the petitioners were rape victims (the pregnant person and her minor girls) and prayed from the termination of pregnancy after 24 weeks before the High Court of Madhya Pradesh. The plea was thereby granted by the court.[6]
Lastly, the act leads us to another important question- are reproductive rights, rights or more of a privilege? And who has a greater say in it, the state, or the pregnant person? Through various judgements it has been established that reproductive rights come under personal liberty and is an essential part of Article 21 [7]. Likewise, the court in Mamta Verma v. UOI and Meera Santosh Pal v. UOI unequivocally pronounced that the freedom to make reproductive choices is a facet of women’s personal liberty. It is possible to use reproductive choice to both procreate and abstain from procreating.[8]
Rights of the other actors
Reproductive Rights of the Non-Binary people
One does not need a lot of time to figure out from the language of the MTP Act, 2021 that it is exclusively made for cis-gendered females and the other genders do not find a place in it. This is contrary to the numerous Supreme Court judgements which has reprimanded the creation of gender inclusive laws and underlined the fact that gender should not become a barrier when it comes to reproductive rights.[9] One possibility is that trans males who chose not to have surgery or hormonal therapy might be physiologically capable of becoming parents and thus require access to abortion clinics.[10] The apex court in the 2014 case of National Legal Services Authority (NALSA) v. Union of India accorded non-binary gender identities legal status and said that transgender people have the same fundamental rights as everyone else under Articles 14, 15, 16, 19(1)(a), and 21.[11] Hence the sheer disregard towards the non-cis-gendered person who may need abortion and reproductive healthcare violates the Articles 14, 15 and 21 of the Indian constitution. The Transgender Persons (Protection of Rights) Act, 2019 was enacted for the welfare and the protection of rights of the transgender community. Under this the gender confirmation surgery has been legalized but there has been no mention of abortion/reproduction related laws from the transgenders. Most people do not even know that trans people can menstruate or they may have the ability to procreate. This is because the information that is available is in a purely heteronormative context. For getting an abortion done, trans people have only one option that is to go to the police station. That is clearly an access barrier for them. The ART Act [12] is also restricted and do not include transgender people within their purview. Even ‘reproductive correction’ is performed through various surgeries on non-binary children to make them binary. Hence it is high time that we include these marginalised sections when we talk about reproductive rights as they are very well affected by them. One potential remedy of this can be the changing of the term ‘pregnant woman’ into ‘pregnant person’ which is more gender neutral. This has been done before when the MTP(Amendment) Act, 2002 changed ‘mentally ill persons’ to ‘lunatic.[13] We can take example from countries like Argentina, where abortion laws now include non-cis-gendered people.
Reproductive rights of the child’s father
Fathers contribute to the making of a baby, their contribution even increases after the birth of the child from socio-economic context and becomes necessary for the child development. The consent of the father is not taken into consideration for abortion because of obvious legal reasons- i) The pregnant person is the one who is more affected by the pregnancy ii) The pregnancy is more of question of the pregnant person’s right to privacy and body autonomy. But when the pregnant person decides keep the baby, there can be several implications that can affect the father. Recently, a new stream of debate has emerged wherein activists are demanding “Financial Abortions”. Financial Abortion or Paper Abortion is the right of the biological father of the child to dissolve himself from all the financial duties of the child. It requires the pregnant person to notify a prospective father during the pregnancy and the father will have the choice to accept or refuse to take the financial or legal responsibility of the child. If the child is born even after the refusal of the father, he/they will not have any responsibilities. Another aspect of this is Forced Fatherhood which can occur through Sperm Theft/Sperm jacking which is the usage of the man’s sperm without his consent through force or deception. It can happen when their partner lies about the usage of contraception or when a man is sexually assaulted. To ensure this, the above-mentioned problems must be addressed by the state through regulatory frameworks. When it comes to the Indian society, it is not very conducive to implement laws which approve financial abortion because can lead to various problems such as – the mother not being able to carry the financial burden of the child and can also affect the social fabric of the society. Secondly, when it comes to Forced Fatherhood, there must be new laws that punish the usage of a man’s sperm without consent and there should be mechanisms that help the victim to get out of any burden rising from such pregnancy. In moving toward an ethic of gender equity, there is need for a clear vision of men as equal partners in reproductive decision‐making and the physical and emotional care of dependent family members. [14]
Surrogacy and Assisted Reproductive Technology
Surrogacy is a third-party reproductive practice where one woman agrees to go through labour and deliver a baby on behalf of another woman. The reasons for this arrangement can be varied- in case a woman has pregnancy risk, or her body is not viable to give birth or if a single father wants to have a child. There are four types of surrogacies.
- Traditional- In this case the egg of the surrogate mother is used along with the sperm of the biological father.
- Gestational- In this case the egg and sperm of the biological parents are used. The surrogate mother is only responsible for carrying and delivering the baby.
- Commercial- It is a contract where the couple agrees to pay the surrogate mother for delivering the baby along with all the medical expenses incurred before and after the delivery.
- Altruistic- In this case the surrogacy is done out of good will by some relative/friend of the couple as no monetary compensation is given by the party except the medical expenses.
The Indian Council of Medical Research Guidelines, 2005- It provided a guideline on how fertility clinics should employ Assisted Reproductive Technology. It was not very significant as it was not legally binding.
The Surrogacy (Regulation) Act, 2021 – Only gestational-altruistic surrogacy is allowed in India. Commercial surrogacy was banned in India as per the recommendation of the 228th report of the Law Commission of India because it led to problems like child trafficking, exploitation of the woman by breach of payment, psychological repercussions etc. Only a couple married for at least 5 years between the ages of 23-50 (female) and 26-55 (male) is allowed.
Assisted Reproductive Technology
The Assisted Reproductive Technology Act, 2021- ART is used to treat infertility through procedures like Gamete donation, in-vitro fertilization etc. It is available to all married couples, live-in partners, single women, and foreigners.
After the famous case of the Japanese couple in 2009, government was pushed for making a law regulating surrogacy.[15] Still there is enough room for improvement. It has been heavily debated that banning of commercial surrogacy is a sheer denial of a good source of income for many poor women. On the other hand, allowing only gestational surrogacy removes all hopes of having a child for a single parent or a woman who cannot bear a child.
The political dimension
A famous quote of Rachel Green, one of the main characters of the hit sitcom Friends goes like ‘No Uterus, No Opinion.’ This quote does not mean that only women get to make law on the issues that affect them, but they must be included in greater numbers in the decision-making process which deciding such issues It can be very well related to the current Indian scenario where there is scarce women representation in the law-making process. Women should not be treated as pawns on the policy making chessboard, they should be active players. Decisions regarding reproductive rights are intimately concerned with women’s lives as only they would know the exhaustion of gestation, the pain of labour, and the complexity of motherhood. To be able to understand the concerns of reproductive rights and to implement the right policies we need more women representation in the political seats. The picture below aptly captures the lack of representation. State governments continue to implement programmes that encourage female sterilisation, through targets, which can result in coercion, risky substandard sterilisation procedures, and the denial of access to non-permanent methods, despite India’s National Population Policy guaranteeing women voluntary access to the full range of contraceptive methods. Another problem is that India only understands specific difficulties regarding reproductive rights, such as child marriage, female foeticide, sex discrimination, and menstrual health and hygiene issues. This is reflected in the parties’ election manifestos, which frequently place these issues on the front to win over the general public.
Provisions like Prohibition of Child Marriage Amendment Bill, 2021 have been introduced making advanced changes like changing marriable age for women from 18 to 21 year. But the ground reality is that – India is home to the largest number of child brides in the world: 223 million child brides – a third of the global total.[16] This means even the former limit was breached to huge extents. Hence, the focus should shift to implement the existing laws rather than curating new laws.
Figure – 2[17]
The Public Healthcare system
The Indian public health system is also plagued by several issues, including a lack of qualified human resources, insufficient infrastructure, including pharmaceuticals and diagnostics, and restricted public investment. Over the past few decades, there has also been a surge in the corporatization and privatisation of healthcare, which came with a lack of stringent regulation. All of this has resulted in decreased healthcare accessibility, affordability, and quality, notably for needs relating to reproductive health, increasing social, economic, especially for girls, women, and marginalised populations. In India, discrepancies in access to reproductive healthcare as well as in health outcomes are clear for vulnerable communities, as well as within and across states. There are also many ART clinics running in the country without regulation which may have implications on health of those who undergo the procedure and can lead to other unethical practices. Within government programmes and policies, reproductive morbidities continue to receive shockingly little attention. Like this, there is a severe dearth of access to safe, high-quality abortion services, including information, counselling, and post-abortion care. One of the main reasons for this is the extremely less importance given by the government to healthcare, which is apparent from the fact that it spends only 2.1 per cent of GDP on healthcare. [18] This argument is further backed by the mage given below. The MTP, 2021 Act says that abortions are only to be performed by a gynaecologist or obstetrician. But the recent guidelines issued by the World Health Organization says that medical officers, practitioners, nurses can perform abortion up to 12 weeks. This simple relaxation can increase the access to abortion in large numbers. Hence the government needs to make sure that the public healthcare system is conducive for the implementation of all the laws and inclusive of all kinds of people requiring support regarding reproductive health.
Figure – 3[19]
Suggestions and Conclusion
As Margaret Sanger rightly said “No woman can call herself free who does not control her own body.” Not only just the person giving birth, reproductive rights is a multifaceted issue which affects the society as a whole. On the international platform, India has been one of the pioneers of making reproductive rights related laws. Steps such as extension of the gestational limit for abortion and increasing access to safe and legal procedures through acts like MTP(Amendment), 2021 have been very beneficial for the country. However, despite these advancements, barriers to reproductive rights persist. To fully realize reproductive rights in India, there is a need for comprehensive and integrated strategies that address not only legal and policy reforms but also social, cultural, and economic factors that influence reproductive decision-making. Strengthening healthcare infrastructure, improving access to quality reproductive healthcare services, and promoting gender equality and women’s empowerment are crucial steps toward achieving reproductive justice.
Authored by – Arisia Mandal, 1st year, Dharmashastra National University
[1] Susheela Singh, et al., The incidence of abortion and unintended pregnancy in India, 6 TLGH, (2015).
[2] The Medical Termination of Pregnancy (Amendment) Bill, 2020, PRS Legislative Research, https://prsindia.org/billtrack/the-medical-termination-of-pregnancy-amendment-bill-2020 (last visited June 13, 2023).
[3] Choudhuri, et al., Medical Termination of Pregnancy Act 2021: A Study to Understand Awareness, Foundation for Reproductive Health Services India, December 2022.
[4] Ambika Gupta, A Critical Analysis of the shortcomings under the MTP(Amendment) Act 2021, 1 VULJ 86, 92 (2021).
[5] Shri Bhagwan Katariya v. Others vs State of M.P, 2001 (4) MPHT 20 CG.
[6] X minor through her Guardian v. State of Madhya Pradesh, (2021) SCC Online MP 695.
[7] Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1.
[8] Justice K.S. Puttaswamy (Retd.) and Anr v. Union of India and Ors, (2017) 10 SCC 1.
[9] Navtej Singh Johar and Ors. v. Union of India and Ors., AIR 2018 SC 4321.
[10]Juno Obedin-Maliver, Harvey J Makadon, Transgender men and pregnancy, National Center for Biotechnology Information (June 12, 2023, 9:23 PM), https://doi.org/10.1177/1753495X15612658.
[11] National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
[12] The Assisted Reproductive Technology Act, No. 42, Acts of Parliament, 2021 (India).
[13] Shamik Datta, Trisha Choudhary, Breaking the Gender Binary: A Call for Inclusion in India’s Abortion Laws, The Journal of Indian Law and Society Blog (June 13, 2023, 12:15 AM), https://jils.blog/2021/02/26/breaking-the-gender-binary-a-call-for-inclusion-in-indias-abortion-laws/.
[14] Levtov, R., et al., G., State of the world’s fathers: A MenCare Advocacy Publication, 2015.
[15] Baby Manji Yamada v. Union of India, AIR 2009 SC 84.
[16] United Nations Children’s Fund, Ending Child Marriage: A profile of progress in India, UNICEF, New York, 2019.
[17] Bansari Kamdar, Where Are India’s Women Politicians?, The Diplomat (June 13, 2023, 12:51 AM), https://thediplomat.com/2018/10/where-are-indias-women-politicians/.
[18] Sumi Sukanya Dutta, Economic Survey 2023: Govt spent 2.1% of GDP on healthcare in FY23, Moneycontrol (June 13, 2023, 12:51 AM), https://health.economictimes.indiatimes.com/news/policy/economic-survey-2023-govt-spent-2-1-of-gdp-on-healthcare-in-fy23/97488091.
[19] Puja Mehra, India’s economy needs big dose of health spending, Mint (June 13, 2023, 12:51 AM), https://www.livemint.com/news/india/india-s-economy-needs-big-dose-of-health-spending/amp-11586365603651.html
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