A DETAILED STUDY OVER THE REPRODUCTIVE RIGHTS OF A WOMEN AND REPRODUCTIVE TECHNOLOGY 

ABSTRACT:

Reproductive health of a women and the rights over her reproductive health is a crucial and a debatable topic nowadays. Various challenges and issue are faced by women for right over their own reproductive health is a point that needs a through research. The research paper aims to study about the meaning, nature and scope of reproductive right and reproductive technology. In the study reproductive rights and the autonomy of a women on her reproductive health and also the various ways of assisted reproductive technologies have been explained. To understand the paper in detail various literature reviews, case laws has been included. What are the legislative frameworks and government mechanism to regulate the reproductive right and various ART has been taken into consideration. This paper also focuses upon what are the condition of reproductive health of the women in other nations has also been analysed to get a clearer understanding about the same analysing India’s standing in comparison to the other nations. As the women’s autonomy over her reproductive health and the right of the unborn child is a conflicting issue hence, the paper has tried to give focus on this issue too within it with the help of various examples. The main objective behind writing the paper is to come up with suggestion and conclusion for the makers of the policy and an approach in regard to some advancement in reproductive rights and reproductive technology.

KEYWORDS:

Reproductive right, Reproductive health, Autonomy, Assisted reproductive technology, Surrogacy, Abortion, Unborn child.

INTRODUCTION:

Nowadays, as women is holding a significant position in the society, their reproductive right does also play a very crucial role.

Deciding about one’s own reproductive health is an essential human right. These rights include autonomy over her reproductive health in deciding if the women want to have children or not, easy access to healthcare services including contraception, safe abortion, deciding sterilization procedure and decisions related infertility treatment. The right does also include the right of privacy and confidentiality to be kept, in matters related women’s reproductive health so that a women can seek the advice without any fear of violation of confidentiality.

A lot of people are unable to conceive the child due to various reasons. Assisted reproductive technology (ART) is a medical practice performed to conceive child if someone is facing difficulty in conceiving due to any reason. This technology is very helpful for those who are facing problem in pregnancy like infertility and those who have already tried gone for various treatment. With use of this technique the medical practitioners use eggs or embryos to increase the chances of getting pregnant.

As per the world health organization infertility is unable to conceive even without use of contraception from more than a year. The commonly used ART involves In vitro fertilization (IVF), Gamete intrafallopian transfer (GIFT), ETC…

Various types of ART procedure and techniques that involves:

In vitro fertilization (IVF): It is considered to be the most commonly used reproductive technique. The techniques involve the egg of and sperm of both male and female. Later the egg and sperm are fused to create embryos. The created embryo is then transferred into the body of women. 

Gamete intrafallopian transfer (GIFT): In these techniques various eggs are collected from the ovary. Later the eggs with the sperm are placed in a flexible tube. The both gametes are injected into fallopian tube with the help of surgery called as laparoscopy.

Zygote intrafallopian transfer (ZIFT): It is a technique similar to that In vitro fertilization and embryo transfer. The difference between both the technique is that in ZIFT the fertilized embryo is transferred into fallopian tube instead of uterus. The technique is also called as tubal embryo transfer (TET) as the fertilized embryo is directly transferred into tubes.

Intracytoplasmic sperm injection (ICSI): The technique is basically used when the male is infertile. In this technique a single sperm is infused with a mature egg and placed down in a petri dish where egg is fertilized by the sperm by its own. Many of the times this technique is used when the IVF didn’t worker or for the couples who are somewhat old.

Artificial insemination: Artificial insemination is a process in which the sperm is introduced directly into the cervix or uterine of women. The commonly used practice that is called as “intrauterine insemination (IUI) where the sperm is placed in the uterus by medical practitioners. 

Surrogacy: Surrogacy is a process which involves a woman who carries the child in behalf of the intending parents and the women carrying the baby is termed as surrogate mother. The surrogate mother can also be termed as gestational carrier as she carries the child in her womb till delivery on behalf of the intending couple. Commonly there are two types of surrogacies:

Traditional surrogacy and Gestational Surrogacy:

In traditional surrogacy the egg of surrogate mother is fertilized with the sperm of intended father or the sperm donor, and after that the fertile embryo is artificially inseminated inside the womb of the surrogate mother. The surrogate mother carries the child till the birth in her womb. Hence in traditional surrogacy the child born is related to either the intended father or the sperm donor genetically. In many of the scenario the traditional surrogacy is avoided as because of the biological ties between the child and the surrogate mother as the egg that gets fertilized are of the surrogate mother itself.

In the case of Gestational surrogacy, the egg of the intended mother is fertilized with the sperm of the intended father or the sperm donor in laboratory and then transferred to the womb of the surrogate mother who carries the baby till birth. Hence in this the child born will be genetically related to the intended mother and the person with whose sperm the egg was fertilized.

Surrogacy is further divided into two more forms on the basis of money:

  1. Altruistic surrogacy: This is an arrangement where the surrogate mother does not take any monetary compensation for being a surrogate mother. This type of arrangement is mostly seen when the surrogate is a close relative or any friend of the intending parents.
  2. Commercial Surrogacy: This is an arrangement where the surrogate is given monetary compensation, medical expenses or anything having money’s worth in return of carrying the child in her womb. These types of surrogacies are nor practiced in India.

Why is this topic researchable:

The topic “reproductive rights and technology” is researchable as it impacts the society, individuals and helps in finding policies made for the public. It orders to promote gender equality and knowledge with regards to reproductive health and reproductive technology which is crucial nowadays for better understanding for this technology and one’s right. This topic will help understanding about the autonomy of women on their own body and reproductive health.

Additionally, the legal landscape surrounding reproductive rights and technology is constantly evolving, creating a need for ongoing research to understand the implications of legislative changes and court decisions. Research in this area can help policymakers develop informed policies that protect individuals’ rights while promoting public health and well-being. It is also crucial to know what the stand of the legislation over this topic is whether it does protect the right of the women or not.

Overall, this topic is a broad and dynamic in nature. The reproductive rights and technology and its implications over the individuals and societies makes it a debatable and a topic need to be researchable.

METHODOLOGY:

The methodology used this in this research paper adopts a doctrinal approach. The paper focuses on the study of the legislations and governance mechanism, regulating the rights of women over their reproductive health and the various Reproductive technologies. Also, the major challenges faced by the women has been dealt. Data has been gathered from sources such as statutes, acts, regulations, policy documents from government websites, academic literature, case laws, reports, and commentaries. In the study we focus to explore challenges of the women’s right to abortion, and also the right of the unborn child through detailed research.  We have provided citations for all sources that has been used by us in the research Paper. Moreover, a thorough research approach has been used in this study with the aim to provide a better view about the efficacy of the existing legislative frameworks and governance mechanisms in way of addressing socio-legal challenges in respect of reproductive right and health.

LITERATURE REVIEW:

In a book by Jeanne Flavin “Our bodies, our crimes” focus upon the restrictions imposed on women’s reproductive choice by the state. She in her book stresses upon that its women’s right to decide whether she wants to have children or not.   Even in today’s time many of the women are not aware of their rights and healthcare. Like they are scared and hesitated to use modern technology as due to their lack of knowledge about its efficiency and side effects. In the book the unmarried women’s challenges has also been highlighted as how they do faces problems in going for abortion. They struggle to speak out about their sexual exploitation by their partners, by employers at workplace and others. Flavin has also discussed about the discrimination faced by a disabled women in matter of reproduction. Society deems them to be incapable and unfit for conceiving a child and forced to go for abortions. Overall, in the book author has critically analysed the problems and challenges faced by the women nowadays in regard to their own body, reproductive health and their rights which highlights a great attention of legislature to have an effective framework and mechanism to protect the exploitation of women from the societal perspective and exploitation. 

In a book “Reproductive politics: What everyone needs to know” by Rickie Solinger, talks about political involvement nowadays with regards to women’s reproductive matters. The author here left a question that who holds the power to decide whether to get pregnant or not or getting aborted or not: A women, a physician, or legislature? The author has discussed about the ongoing conflict between the person who believes the reproductive right to be public concern subjected to legislation and who believes it to be women’s autonomy to decide whether to have children or not as their personal decision. Solinger highlights the need for and importance of respecting the women’s autonomy regarding their reproductive matter and right to keep it private focusing on individual access over the matters like abortion, use of contraception, getting pregnant and using reproductive technologies. 

In an article by K.D Gaur “the law in India” discusses the Indian legal mechanism and concept of abortion. He in his article explores the provisions of the medical termination of pregnancy act and the provisions of miscarriages in IPC, 1860.  The authors also highlight the loopholes in the way of abortion as illegal abortion practiced by unqualified medical practitioners. Due to strict legislation on practice of abortion women goes for these types of illegal abortion which have negative consequences on health of a women. Also, the author has highlighted the situation where women take extreme actions like suicide, infanticide and abandoning their child due this strictness. Hence, the author in his article has mainly focused on what are the negative consequences that can been seen as because of the strict legislations. 

In an article “Surrogate Tourism and Reproductive Rights,” written by V. Panitch discusses about the reproductive right of women who goes for medical techniques like surrogacy and assisted reproductive technologies to conceive children. The article also discusses about in country like Indian where a disadvantaged or poor women who becomes surrogate mother for the couple who are unable to conceive child. They do this in exchange of some benefits like money or anything having money’s worth. The author examines the issues surrounding the surrogate mother in today’s world. He also suggests to look into the regulation of reproductive technology likes surrogacy to protect the right of biological and intending parents.

Some of the challenges that can be drawn out of the above literature review that needs to be given emphasis are:

Lack of awareness: It can be seen clearly that many of the women are not aware of their reproductive rights and healthcare. They are hesitant to go for reproductive technology which does subsequently results in negative effects on their health as due to lack of knowledge about the efficiency and related side effects.

Social stigma and discrimination: Clear discrimination against unmarried women and disabled women can be drawn out from the above literatures. Women who are unmarried and disabled are seen in discriminative way. Due to these things, they struggle and does faces various challenges in going for abortion and deemed to be not fit for carrying a child.

Loopholes in legislation: Due strict legislation women go for illegal abortion which leads to negative health side effects. Manier times its seen that women take extreme actions like doing suicide, abandoning the child after their birth and infanticide.

Raised concern of exploitation of poor and disadvantaged: The women’s who belong from poor and disadvantaged background they do usually go for surrogacy and become a surrogate mother for the couple who are unable to conceive.

Hence a proper regulation and framework needs to be there to prevent these exploitation and abuse of surrogate mother, intending parents and children born.

LEGISLATION OVER REPRODUCTIVE RIGHTS IN INDIA:

“Medical Termination OF Pregnancy (MTP) Amendment Act, 2021”

The medical termination of pregnancy act was previously passed in 1971. It was bought by seeing the medical advancement and going for safe abortions. It was a necessary step taken by the legislature to ensure access to reproductive health services. 

The medical termination act legalises termination of pregnancy at certain extend by taking into consideration some of the clear criteria. The registered medical practitioner practicing medical termination process and the canters where MTPs are practiced has been provided with some of the guidelines to perform such practices. The MTP Act does not provides for termination of pregnancy for the purposes like family planning or just on the basis of women’s request for the same.  

Recently in October 2021, the revised “Medical termination of pregnancy (amendment) act, 2021” has passed to broaden and strengthen the concept of reproductive right including necessity of safe and legal abortions and easy in accessibility to all.  

Various key Changes has been bought by the amended MTP Act, 2021, some of the basic changes includes:

Termination of pregnancy cause of contraceptive failure: The law previously provides for termination of pregnancy due to failure of contraceptives, only for married women but after the amendment the unmarried women can also go for termination in such cases.

Opinion for Termination of pregnancy: Previously the pregnancy can be terminated only before 20 weeks of pregnancy in all cases.  But the amendment provides that to terminate pregnancy within 20 weeks the opinion of one registered medical practitioner is necessary. If termination is between 20-24 weeks needs to tale opinion of two registered medical practitioner is necessary. In case of termination of pregnancy after 24 weeks, only if the cases involve like any fatal abnormality, the previous permission of a state-level medical board is required.

Extended time lime in some circumstance: According to the Act, the minimum period in which one can go for termination is 20-24 weeks but for some specific circumstances the limit is extended. Some of the circumstances can be cases like survivor of rape victim, differently abled women, minors, and other vulnerable groups. 

Confidentiality and privacy: The new MTP amendment act provides for the importance of confidentiality. The act states that the women who has gone for termination of pregnancy their identity must remain confidential. 

“Assisted Reproductive Technology (ART) (Regulation) Act, 2021

The “Assisted Reproductive Technology (ART) (Regulation) Act, 2021” is an act to regulate the functioning ART centres in India. Because of coming of IVF, the ART clinics and ART banks are increasing in the country, to safeguard and regulate the functioning of those clinics the regulation was necessary.  

The act provided some of the eligibility criteria for donors, like:

An ART bank can obtain semen of males from the age group of 21-55 years and for female the age group is 23-35 years. A women can donate eggs only one once in her whole lifetime and there is a limit of not more than 7 eggs can be retrieved from her. 

The age limit for commissioning couple to go for ART services are: For Women she should be above the age of 21 years and below 50 years of age and for men he should be above 21 years and below 55 years of age. 

There is a condition in the Act that an ART procedure that requires a prior written consent of both commissioning parties and the donor. And the commissioning parties are required to give insurance to the egg donor for covering any kind of loss or death that may cause to the donor. 

What does the Act talk about the right of the children born through ART:

According to the act a child born through ART will be considered just like a biological child of the commissioning couple. They will get all the rights same as a natural child gets and enjoys. Donors will not be provided with any parental right over the born child. 

Heterosexual and unmarried couples are excluded from the Act:

The ART Act gets applied only to married and infertile couple who are unable to conceive even after not using contraception for one years. Hence, the Act limits those whose are not mentioned in this Act and restricts them to go for ART procedure.

Surrogacy (Regulation) Act, 2021:

The Surrogacy (Regulation) Act, 2021, a divorced or widowed within the age of 35-45 and the couple who are married and have need of this option.

The act prohibits commercial surrogacy it limits to just altruistic surrogacy. If someone found practicing commercial surrogacy will be punishable with imprisonment of 10 years and fine up to 10 lakhs.  This means that the women who is surrogate is not entitled to any monetary compensation or anything as to money’s worth but medical expenses and insurance coverage of the surrogate mother is permitted in case of any threat to the life of the surrogate mother. 

Criteria to be eligible to be an intending couple: 

The intending couple needs to provide certificate of essentiality and a certificate of eligibility.

For certificate of essentiality the intending couple needs to fulfil conditions such as:

  • Proof of infertility.
  • Courts order for the parentage and custody.
  • Insurance coverage of surrogate for 16 months.

For certificate of eligibility the intending couple needs to fulfil conditions such as:

  • The intended couple approaching for surrogacy must be legally married and citizen of India.
  • women should be between 23-50 years of age and the intending men should be of the age between 26-55 years 
  • Also, the intending parents should not have any child that may biological, adopted or any other surrogate children. (The child who is mentally ill or physically challenged or suffering from any life-threatening disease or any fatal illness are excluded).

Criteria to be eligible to be a surrogate:

In order to obtain certificate of eligibility to surrogate women, the surrogate needs to fulfil conditions such as:

  • The surrogate needs to be a close relative of the intending parents.
  • She should be married and should have one child of her own.
  • Between the age of 25-35 years.
  • She should be becoming surrogate for the first time.
  • Certificate of medical fitness.

Baby Manji Yamada v. Union of India 2008:

This was the first and a landmark case in the history of India where decision on surrogacy was made by SC and it also marked important as it bought in light the need of regulation of surrogacy laws in India.

This was a case where a Japanese couple had come to India for Surrogacy. But after some time, they got divorced due to marital issues. The baby Manjhi Yamada was born and case pertaining to the custody of the child was filled and the custody was given to the paternal grandmother of the child. was given the custody of the child. Later an NGO filled petition challenging the legality of the surrogacy. The SC disposed of the petition filled by the NGO and held the surrogacy contract to be valid.

In re Baby M case:

In the landmark case of Baby M, the sterns had entered into surrogacy contract with whiteheads where Mrs. was bearing the child of Mr. Stren through the process of artificial insemination. Later after some time Mrs. Whiteheads contends that she cannot part with the baby. In this case the new jersey court held the surrogacy contract to unenforceable as because of the violation of the statutes and public policy, but by seeing the best interest of the child the custody of the child was given to the Sterns and Mrs. Whiteheads was given visitation right. This case highlights the importance of wellbeing of the child at the first instance.

Right of abortion during surrogate pregnancy:

According to the surrogacy Act 2021, It establishes some clear guidelines for the abortion of a surrogate child. The guidelines will include:

Before going for abortion of the surrogate child it’s essential to take prior permission of the surrogate mother in written form. And also, the act lays down that before proceeding for abortion it is required to take authorization of an appropriate authority, the appropriate authority can include body like a regulatory body or government agency who has been authorized for the same so that the rules and legislations can be maintained. 

The surrogacy regulation act led down that any abortion of surrogate child should compel with the provisions led down in medical termination Act (MTP Act). The provisions like gestational age limit provided and other procedure to get legal authorization for abortion.

Surrogate mother has right to withdraw from the surrogacy agreement and that need to be before implementation of embryo in the womb of the surrogate. 

“The Bharatiya Nyaya Sanhita(BNS), 2023”

The Bharatiya Nyaya Sanhita(BNS) does not clearly talk about abortion and all, but section 86  to 90 of IPC gives provisions for miscarriage of child.  These sections give light upon the protection offences against the unborn child and protection of pregnant women. Miscarriage means killing of the unborn child inside of the mother’s womb itself. Any situation where miscarriage is forced upon women will be strictly punished under these provisions. Previously all the criminal cases were governed by Indian Penal Code, but now The Bharatiya Nyaya Sanhita(BNS), 2023 regulates these cases. Although under IPC the sections regarding Miscarriage were under Section 312 to 316. 

Sharif vs. State of Orissa:

In this case was determined that if the abortion has been performed for the protection of the mother’s life, then it will not be considered as offence and section 312 of IPC would not be taken into consideration. Impliedly it can be stated that section 312 of IPC does also provides for normal delivery of the child. And a registered medical practitioner is also protected if they perform the miscarriage for the welfare of the mother and in good faith. 

Difference between miscarriage and Abortion:

The medical science and law deal with miscarriage as different meaning for it:

Miscarriage according to medical science:

Defines miscarriage to be loss of pregnancy spontaneously before 20 weeks and loss after 20th week is called as stillbirth. While elimination of pregnancy deliberately is called as abortion.

Miscarriage as according to law:

Under law there is distinction provided between abortion, miscarriage and stillbirth. Under law the miscarriage is simply the ejection of premature foetus inside the womb of the mother before the completion of gestational period. 

Medical termination Act provides an exception to punishment under IPC for termination of pregnancy. As the termination of pregnancy act makes it not an offence if the pregnancy is terminated by a registered medical practitioner before 20-24 weeks pregnancy for protection of the pregnant women from any injury and preventing the pregnancy which was not intended.

“Constitution of India and autonomy of women on their reproductive health”

As India being a democratic country provides its citizen with some fundamental right under part III of the Indian constitution. With the help of the rights provided under the fundamental right the people’s individuality are protected and given significant importance and ensures that the person’s right could not be hampered. The concept of golden triangle that been given in Maneka Gandhi V. Union of India. Golden triangle is said to formed by the Article 14, 19 and 21 of the Indian constitution. The idea behind the golden triangle is that the most important Article 14, 19 and 21 should be read together and not independently. 

Some of the landmark cases which has set a precedent are:

Justice K S Puttaswamy v. Union of India 2018:

In this case the SC held that the right to privacy is also a fundamental right under the constitution of India.

Suchita Srivastava v. Chandigarh Administration (2009):

In this case the SC recognised the right of women’s privacy, dignity and her bodily autonomy. She was given eight to conceive and the court stated that whether to conceive or terminate the child is upon women does comes under the dimension of personal liberty of the women under Article 21 of the constitution of India and woman have right to take decision about her own body.  And also, from the previous case it of K.S Puttaswamy in which the right to privacy was held as fundamental right. And hence right of women to abort the child or not falls within fundamental right of the women.

X v. The Principal Secretary, Health and Family Welfare Department, Govt. Of NCT Of Delhi & Anr:

In this case the court held that the petitioner could opt for termination of pregnancy even though the petitioner was unmarried. The court had stated that denying an unmarried woman her right to autonomy over her reproductive health would violate her right to equality under Article 14, which is her fundamental right. The court stated the unmarried women also have the same right as a married women in regard to their reproductive health. The court also cited that whether to conceive or abort the child should be over women, as it does come under her right to live with dignity and privacy under Article 21 of the Indian Constitution.

This case was a milestone for Indian judiciary. The SC in this case made an inclusive interpretation here. The decision did also make the definition of term “mental health” will also include the welfare of the women. In this case the court also gave prominent importance to the fundamental right of women like right to equality, right to live life with dignity and right to privacy had been kept intact in the judgement by the court.

ABORTION RIGHT OF THE MOTHER VS LIFE OF THE UNBORN:

Right to abortion of the mother or right of unborn child is a complex and debatable issue.  The judiciary is also not clear over this issue whether to prioritize women’s autonomy over their reproductive right and the right of the unborn. Recently in a case a women approached SC for taking permission to terminate her pregnancy in 27th week. The case was referred to two judge benches where both judges came up conflicting view. Justice Kohli was against the termination of pregnancy seeing the viability of the child to be born as per the report of AIIMS. She was against ending the life of the unborn child as the child was fit to born. However, on the other hand Justice Nagarathana was more concerned about the right of the women to have autonomy over her body to decide whether to terminate the pregnancy or not. At end both the judges lead down different and conflicting opinions over this case. On request of Additional Solicitor General Aishwarya Bhati who had received information from a gynaecology of AIIMS, stating that if the child is born premature, there is high risk of physical and mental complications attached, Chief Justice constituted a special bench headed by Justice Kohli and Nagarathna and referred the case again. In the hearing Justice Nagarathna cited another case X v Health & Family Welfare Department (2022) in this the women’s autonomy over their reproductive right was maintained. Due to different opinion CJI constituted bench headed by 3 judges to come on a decision. Later the judge consisting of 3 judges came up with decision and dismissed the request of termination of the pregnancy and assigned the hospital AIIMS for birth of the child only after completing the full term of the pregnancy.

With the reference of this case, we can infer that the approach of judiciary over right to abortion of the mother vs right to life of the unborn is not clear and highlights the problems and complexity in the matter each cases applies different judicial approach and interpretation of law.

COMPARITIVE ANALYSIS:

Adoption is critical point of contention in any country. As child is said to be gift from the god and killing them inside the womb even before getting expose to outer world and is considered as a legal as well as religious issue worldwide. Nowadays women are given significant importance everywhere however when it comes about the reproductive rights and women’s autonomy the right of child comes into picture and becomes a topic of controversy in all over the world. A case of Ireland where the women suffered miscarriage even, she was not allowed to go for adoption resulted in organ fail and subsequently the women died. This bought controversy worldwide mainly in Britain and India. 

Different countries follow different legislative approach to deal with this, will mainly discuss here about some countries and the approach they implement in handling these kinds of cases:

United States:

In USA the legislation is full of arguments and various debates. Previously according to US laws abortion was allowed only if there were the cases like rape or incest. But after landmark case named Roe V. Wade, in this case the US Supreme court held that it’s the sole decision of the women and the doctor to decide whether she wants to have child or not. As right to privacy does also includes right to decide whether to have child or not. After this case the women’s got some right over their reproductive health however by the use of trimester rule the court took a reasonable approach from the perspective of both women as well as the child. The court stated the women’s autonomy over their reproductive right will be given preference in the first trimester, but the state will have authority to regulate it for the other trimesters. Later in a case Planned parenthood Southeastern Pennsylvania V. Casey (1992) In this case the SC of USA held an “undue burden test” in place of the previous trimester test held in the Roe’s case. The case didn’t completely overrule the Roe’s case, just reframed that case . 

Ireland:

In Ireland all the adoption that violates the person’s act, 1861 are illegal. The constitution of Ireland states that the unborn child does also have the right to life from beginning of the conception till birth of the child. In a case Attorney general v. X (1992) SC held that if there are any cases where there is threat to the life of mother then the abortion can be allowed. 

After the case of the death of the women Savita Halappanavar, she was an Indian Citizen led to worldwide protest involving the United nation. After this Ireland regulated its abortion laws by bringing “Protection of Life during Pregnancy Act, 2013”.

Sweden:

Abortion in Sweden is currently regulated by “the Abortion Act of 1974”. The act allows abortion for 18th weeks from the time conception if the abortion procedure does not harm the life and health of the women. After passing of 18 weeks, it is required to take the permission of the National board of health and welfare i.e. a central authority in Sweden who looks after abortions and other various social services.

CRITICAL ANALYSIS:

If will go by statutes, In India the laws relating to abortion comes under MTP Act and in IPC 1860, from section 312 to 316. If we will study the MTP Act we can draw out that it does not provides any right to women for going for abortion, the termination of pregnancy that is allowed under this does completely depends upon the medical practitioners who are registered. 

Hence, from the Indian penal code and MTP Act it can be drawn out that it does violates the fundamental right of the women like right to privacy, right to health and right to leave her life through dignity under Article 21 of the Indian Constitution. If abortion is not allowed to a woman when they seek for the same, then they may use various other techniques to being aborted by various other means which are unsafe. The use of such unsafe practices can lead negative impact over the life of the women which does subsequently violate the right of health, right to live and enjoy her life with dignity.

All rights consist of two essential elements one is material element and other is formal element. Material elements includes interests such as money, reputation, property etc and interests those which are tangible in nature. And the formal elements consist of interests such as capacity, will and the power to realise interest, etc means interest which are intangible in nature. Hence, it can be said that rights are concerned with interest. Interest is something which provides advantages to person. For instance, if we say that we have interest in reputation it impliedly states that we advantage to live with well reputed name and position and it’s the obligation of the state to protect my interest of living a well reputed life. Therefore, if states that have, we have interest over our body which means that we have right in our favour, and we can go and seek medical attention from a registered medical practitioner and it’s their duty to provide us with safe medical treatment and under safe condition. 

If will take example of a rape victim, in such cases a woman loses women losses her right to live with dignity in the society because of the societal judgement and stigma. And if she is not provided with right to go for abortion then in such circumstances, she may can commit suicide or pursue for other illegal abortion which will violate her right to life as well as right to proper healthcare.

And if will talk about interest of the unborn child, there is no interest of the unborn child prior to the birth and before they are born their right cannot be recognized. For example, under section 13 of transfer of property act which talks about right of the unborn child. But until and unless the child is not born the interest remains contingent which means that event that is dependent upon happening and non-happening. The vested interest over the child gets materialised only after birth of the child and only after the birth the contingent interest ends. And firstly, before the birth of the child the interest is created in favour of living person and the right over the child does gets vested in him only after his birth. From this example we can draw that a child who is still not born does not have the capacity to take any decision, hence, the unborn child lacks the capacity to choose.

SUGGESSTION:

Therefore, from the above example and analysis it can be stated that until and unless a child is inside the womb of the women, they are also a part of a women’s body and the decision of whether she wants to have the child or not should be entirely of a woman. And most importantly if the condition is like if the women is not capable of taking care of the child properly after their birth than it’s much reliable that she should abort the child. From the legislative frameworks for regulating these rights like the recent amended Medical termination of pregnancy act and the Assisted reproductive technology(Regulation) act highlights that the Indian legislators has tried to make the policies be much friendly and a step in regards to the protection of rights of the women and their autonomy over their reproductive decisions and ease in excess of healthcare decisions and suggestions from the medical practitioner. However, the challenges are their like societal view, lack of awareness among people about the policies and different technologies over reproduction can be seen.  And also, the acts do also infringe women’s right by restricting them to decide whether to abort the not. This violates their fundamental right to privacy, health, dignity as per the constitution of India. From the research it’s important to understand that the women must have the autonomy over their reproductive health as denying the women to go for abortion legally make them opt for unsafe abortions which have various negative effects over the health of the women.

CONCLUSION:

The understanding the nature, emergence, challenges related to reproductive rights and reproductive technology highlights various legal, social and ethical view which emphasises the importance of the autonomy of a woman over their bodies and reproductive health. The Reproductive technologies has provided hope under the parents who are childless due to various reasons like infertility to have their own child connected to them in some with the help of these technologies. With the help of this paper, it can be concluded that emphasis the autonomy of a women over her reproductive health is an important human right and violating her right to do so will be considered as violation of the fundamental right of women like right to privacy, dignity and health. Hence, to promote justice and ensuring well-being of the women it’s crucial to uphold the right of the women. Safeguarding the reproductive right of women through legislations that upholds the autonomy of women.

RIMJHIM

(Symbiosis law school, Nagpur)