Abstract
“Sexual and reproductive rights are integral to human rights. The right to make decisions about one’s own body is fundamental to personal autonomy and dignity, providing individuals the freedom to shape their lives according to their values.” With that view this research paper delves into the intricate landscape of sexual and reproductive rights, positioning them as indispensable components of human rights. Through an elaborative study of the Indian Constitution and international conventions, the study highlights the various dimensions of these rights, dissecting their legal, societal, and ethical implications. Aiming to contribute to the ongoing discourse on human rights, this research navigates through the nuanced terrain of sexual and reproductive autonomy, emphasizing their fundamental nature in fostering individual dignity and equality.
As the paper unfolds, it investigates the constitutional guarantees and international commitments that underscore the significance of sexual and reproductive rights, probing their intersections with broader human rights frameworks. Additionally, the paper highlights the challenges in effectively enforcing these rights in the context of the Indian legal system and societal norms. By unfurling these challenges, the study seeks to shed light on potential areas for improvement and reform. Further, the paper focuses on the legality of abortion in India and the United States of America.
Keywords: Reproductive and Sexual Rights, Indian Constitution, International conventions, abortion.
Research Methodology
This paper is of a descriptive nature and the research is based on secondary sources for the deep analysis of sexual and reproductive rights in India and International conventions and conferences on Sexual and reproductive rights. Secondary sources of information like books, journals, and websites are used for the research.
Introduction
Sexual and reproductive rights are fundamental to human rights globally since they sit at the crossroads of individual liberty, dignity, and societal ideals. The constitutional status of these rights is subject to change depending on the era and context of how individual liberties are viewed.
International steps, like the International Conference on Population and Development (ICPD), and the Convention on Elimination of All Forms of Discrimination Against Women have played a crucial role in influencing the conversation that centers around sexual and reproductive rights and promoting international understanding.
Notwithstanding global endeavors, obstacles nevertheless exist in the implementation of these rights, encompassing a wide range of social and cultural norms and behaviors as well as legal indefiniteness. The paper introduces the sexual and reproductive rights landscape as it is outlined in the Indian Constitution, the impact of international conferences, and the complex state of abortion rights in two important countries—India and the United States of America and the barriers to enforcement,
Sexual and Reproductive rights under the Indian Constitution
The Part III of the Indian Constitution guarantees several fundamental rights to its citizens and non-citizens out of which one of the fundamental rights under Article 21 is the Right to life which implicitly includes sexual and reproductive rights. The Indian judicial system through its constructive approach has recognized these rights through numerous judgments wherein the court held the right to procreation and parenthood, the right to reproductive health, and the right against sexual exploitation as fundamental rights.
Right to Parenthood and Procreation- In a recent ruling in 2023 in Kundan Singh v The State Govt of NCT Delhi[1]. the Delhi High Court upheld the convict’s right to parenthood and procreation. Justice Swarana Kanta Sharma remarked that the right to procreation and parenthood extends to convicts as well. Accordingly, the court granted 4-week parole to a 14-year jail-serving convict.
Right to Reproductive Health- The Apex Court in Parmananda Katara v. Union of India[2]. held that it is the fundamental right of every individual to lead a healthy life and avail of medical assistance. Health herein also includes reproductive health. A similar judgment was also pronounced by the Delhi Court in 2011 in the case of Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors. and Jaitun v. Maternity Home, MCD, Jangpura & Ors[3]. wherein the court was dealing with a petition concerning the denial of maternity health to women.
Right against sexual exploitation– In a significant judgment the court held the right against sexual exploitation as a fundamental right under Article 21 of the Indian Constitution. The court relied on International conventions and significant norms in interpreting gender equality and the right to work with human dignity. To ensure gender equality and right to work with human dignity the court issued several guidelines as preventive steps and held that ‘all employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
- Express prohibition of sexual harassment as defined above at the workplace should be notified, published, and circulated in appropriate ways.
- The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
- As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
- Appropriate work conditions should be provided in respect of work, leisure, health, and hygiene to further ensure that there is no hostile environment towards women at workplaces and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment[4].
Right of women to reproductive and sexual choices- The Supreme Court in Suchitra Srivastava v. Chandigarh Administration[5]. held that a woman has the right to liberty which is a fundamental right under Article 21 of the Indian Constitution. Accordingly, a woman has a fundamental right to reproductive choices denying which would amount to infringement of her right to privacy which was held as a fundamental right in Justice K.S. Puttaswamy v. Union of India[6].
Right of women against two-finger test and virginity test- The two-finger test and virginity tests are both inhumane and are an attack on the privacy and dignity of a woman and hence were held unconstitutional in the following rulings:
In Lillu @ Rajesh & Anr vs State Of Haryana[7]. it was held that the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity, and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent.
In Surjit Singh Thind v. Kanwaljit Kaur,[8]. it was held that allowing medical examination of a woman’s virginity infringes on her right to privacy.
Thus, through numerous judicial pronouncements, the Indian Judiciary has attempted to guarantee reproductive and sexual autonomy to both men and women. The grating of these fundamental rights highlights the importance of individuals’ choice to make decisions about their own bodies, sexuality, and reproductive health without coercion or discrimination.
It also ensures better family planning, education, and equality of choice amongst men and women. It also in some manner attempts to solve the issue of poverty and unwanted pregnancy.
International Conventions/Treaties and Conferences on Sexual and Reproductive Rights
- International Conference on Population and Development (ICPD)
The 1994 International Conference on Population and Development (ICPD) broke the past on how population issues were addressed by the United Nations system.
In the conference held in Cairo, Egypt, the ICPD adopted the Programme of Action, which emphasizes the integral linkages between population and development and focuses on meeting the needs of individual women and men, rather than on achieving demographic targets[9]. It urges the empowerment of women both as a highly important end in itself and as a key to improving the quality of life for everyone[10].
The Cairo Conference moved population policy and programmes away from a focus quantity of human life to the quality of human life. It emphasized the areas where it needs to work better i.e. on improving the lives of individuals and increasing respect for their human rights. Furthermore, delegates from all regions and cultures agreed that reproductive health is a basic human right.
The Programme of Action: The programme of action was adopted on the tenth anniversary of the International Conference on Population and Development, UNFPA. The Programme of Action focused on the significant role played by women in population matters and introduced the concepts of sexual and reproductive health and reproductive rights. A new definition of population policy was advanced, giving prominence to reproductive health and the empowerment of women.
Chapter VII paragraph 7.2 of the Programme of Action deals with reproductive rights and reproductive health. It lays a comprehensive definition of reproductive health which includes physical, mental, and social well-being and not just the absence of any disease or infirmity. It further clarifies that reproductive health implies that people are having a safe and satisfying sex life with the ability and freedom to decide to reproduce.
It further adds that reproductive rights embrace certain human rights which are recognized by various national and international laws. These rights rest on the recognition of the basic right of persons to decide freely the number, space, and timing of their children and have accessible means and knowledge to do so. It also recognizes the right to the highest standard of sexual and reproductive health as human rights.
- Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on Sexual and Reproductive Rights
The Convention on the Elimination of All Forms of Discrimination Against Women popularly known as the Women’s Convention is the most important convention on human rights to address discrimination against women. It is worth mentioning that the Women’s Convention is the only one of the six human rights treaties in the United Nations system to mention family planning and sexual and reproductive health. The CEDAW was ratified and adopted by the General Assembly of the United Nations on December 18. 1979.
Health-Related Rights Under The Women’s Convention
The charter of CEDAW contains several rights to individuals and casts certain duties on the government of the nation’s accepting it. The rights and duties are enumerated herein;
Article 10(h)-makes it obligatory for the state parties to provide educational information to help ensure the health and well-being of families, including information and advice on family planning[11].
Article 11(1)(f)- This article casts a duty on the state parties to take appropriate actions to protect the right to health and safety in working conditions, including the safeguarding of the function of reproduction[12].
Article 11(2)- It obligated the state parties to take appropriate actions to eliminate discrimination against women on the grounds of maternity. It obligates the state parties to make provisions for maternity leave, prevent the dismissal of women from work on the grounds of maternity or pregnancy, and provide child-care facilities with special emphasis on the protection of pregnant women in case of harmful work[13].
Article 12 – It is central It formulates (in paragraph 1) States Parties’ obligation “to take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.” It further stipulates (in paragraph 2) their undertaking to “ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation”[14].
Article 14(2) (b)- obligates the state parties to provide access to adequate healthcare facilities, including information, counseling, and services in family planning[15].
Article 16(1)(e) – guarantees individuals the right to decide freely and responsibly the number and spacing of children with access to the information, education, and means to enable them to exercise these rights[16].
Many other provisions of the Convention have an implicit or indirect bearing on women’s rights regarding health, some of which have been explicated in the General Recommendations of the CEDAW Committee about female genital mutilation; sexual violence; HIV/AIDS; and reproduction[17].
Access to safe abortion – a conflicting issue around the globe
Though sexual and reproductive rights are recognized as human rights internationally, the legality of abortion is still a controversial issue in many countries. The most compelling argument against abortion is that it infringes on the rights of the unborn child. Also, a strong social stigma is attached to abortion. It is considered against many religious and cultural beliefs.
Around the globe, since 1994 as many as 60 countries have relaxed their abortion laws to enable more grounds for abortion. Only four countries—the U.S., El Salvador, Nicaragua, and Poland—have removed legal grounds for abortion during that time[18].
- Abortion Rights in India
In India, abortion is dealt with under the Medical Termination of Pregnancy Act, 1971. The act permits termination of pregnancy up to 20 weeks in usual circumstances and up to 24 weeks in special circumstances recognized under the act. But in reality, women are often denied such rights for instance; a woman was prevented from having an abortion after 20 weeks, despite having requested one at 17 weeks[19].
In September 2022, the Supreme Court granted a petitioner permission to terminate her 22-week pregnancy in X v Principal Secretary[20]. and held that the decision to carry a pregnancy to term or terminate it is firmly rooted in a woman’s right to her bodily autonomy and her ability to choose her path in life. It also recognized that an unwanted pregnancy can have serious negative effects on a woman’s life, such as disrupting her education, career, and mental well-being[21].
This was a celebrated decision among reproductive rights advocates around the country that it recognizes the rights of women towards their bodies, it also provides for the termination of unwanted pregnancy. But this victory was soon overshadowed by another decision in X v Union of India[22]. in which a 27-year-old married woman, a mother of two, approached the Supreme Court to seek permission for abortion as per the Medical Termination of Pregnancy Act, 1971. The petitioner discovered her pregnancy at around 24 weeks due to a condition known as lactational amenorrhea, which leads to breastfeeding women not menstruating.
The court noted that the provision of Section 3(2B) of the Medical Termination of Pregnancy Act, 1971 is not attractive in the present case. The protection under the herein-mentioned section only extends to sexual assault survivors, minors, widowed or divorced persons, disabled persons, mentally ill persons, fetal abnormality, or pregnancy during humanitarian crises. Further, the court noted that the woman was also not entitled to protection under Section 5 of The Medical Termination of Pregnancy Act, 1971 which allows termination of pregnancy in cases where it is necessary to save the life of the woman.
Thus, the choice of termination of pregnancy is not absolute and is subject to conditions laid in the Medical Termination of Pregnancy Act, 1971. Women’s right to abortion is measured using a limited scale.
- Abortion Rights in the United States of America
Over a decade abortion was banned in 21 states in the United States until the Roe v.Wade[23]. case overturned it. But recently the Supreme Court of the USA in Dobbs v. Jackson Women’s Health Organization[24]. Ended the constitutional validity of abortion.
The present status of abortion validity in the United States is that 43 states prohibit some abortions after a certain point in pregnancy. To be more specific the below table shows the data[25].:
| Number of States | Abortion validity |
| 14 states | Complete ban |
| 12 states | Ban at viability |
| 4 states | Ban at 22 weeks LMP |
| 4 states | Ban at 24 weeks LMP |
| 2 states | Ban at six weeks LMP |
| 2 states | Ban at12 weeks LMP |
| 2 states | Ban at 15 weeks LMP |
| 1 state | Ban at 18 weeks LMP |
| 1 state | Ban in the third trimester (beginning at 25 weeks LMP) |
Challenges against Enforcing Sexual and Reproductive Rights
Though Sexual and Reproductive rights are recognized as fundamental rights under the Indian Constitution and as human rights under various international conventions, an emphasis has to be laid on its implementation. Implementing these rights, especially in India is a high mountain to climb. There are several challenges in implementing these rights;
- Stigma and Discrimination- Social stigma and societal pressure surrounding sexual and reproductive rights are major hindrances for an individual to exercise these rights. Often in developing and uneducated societies premarital sex, periods, contraception, and abortion are considered immoral and are condemned which results in hesitation for individuals to enforce these rights.
- Lack of comprehensive Sex Education– The absence or incomplete sex education programs contribute to a lack of awareness and understanding of sexual and reproductive rights. In most societies, sex is considered a taboo accordingly issues such as family planning, and maternity leaves are not adequately addressed which majorly affects their implementation.
- Inadequate Access to Services– Particularly, in rural and under-developed areas access to quality medical services results in the denial of services that are essential in maintaining healthy reproductive health. This denial often affects an individual’s choice in making informed decisions.
- Gender Inequality- One of the major challenges in implementing these rights is challenging the deeply rooted gender inequality. These results in unequal power dynamics within relationships, impacting individuals’ ability to negotiate and make decisions about their sexual and reproductive health.
- Economic Barriers– Socioeconomic challenges limit access to reproductive health services such as contraceptive measures. safe abortion, prenatal care, and other services.
- Period poverty– According to the World Bank, as many as 500 million people across the globe lack access to basic menstrual products and hygienic bathroom facilities for use during their menstrual cycles[26].
- Lack of adequate funding- Lack of funding in under-developed and developing economiesaffects policy formulation for enforcing these rights. A major emphasis in these countries is laid on other essential services such as food and shelter.
- Sexual violence- Sexual violence in conflict zones can affect the survivors physically and mentally and can result in anxiety, depression, and post-traumatic stress disorder which on an individual level affect the decision-making of the survivors.
Thus, despite the recognition of these rights, its implementation is a long run and comes a long way. Educating people about the importance of these rights and sex education can be the first step towards an effective implementation of such rights.
Conclusion
In conclusion, the paper establishes the importance and legality of sexual and reproductive rights globally with a special emphasis on its position in India. These rights are fundamental in ensuring bodily autonomy and freedom of choice to individuals. However there are many challenges and obstacles which needs to be addressed in order to establish a more uniformed and effective implementation.
Written By Vaidehi Sharma, a student of the University College of Law at Mohanlal Sukhadia University, Udaipur.
[1] W.P.(CRL) 2700/2023
[2] AIR 1989 SC 2039
[3]W.P.(C) 8853/2008
[4] Vishakha v. State of Rajasthan AIR 1997 SC 3011
[5] AIR 2010 SC 235
[6] AIR 2015 SC 3081
[7] CRIMINAL APPEAL NO. 1226 OF 2011
[8] AIR 2003 P&H 353
[9] International Conference on Population and Development – ICPD https://enb.iisd.org/negotiations/international-conference-population-and-development-icpd (Last visited Jan. 16, 2024)
[10]Programme of Action, rev. 45 https://www.unfpa.org/sites/default/files/event-pdf/PoA_en.pdf
[11] The Convention on Elimination of All Forms of Discrimination Against Women Article 10(h)
[12] The Convention on Elimination of All Forms of Discrimination Against Women Article 11(1)(f)
[13] The Convention on Elimination of All Forms of Discrimination Against Women Article 11(2)
[14] Dr.Carmel Shalev, Rights to Sexual and Reproductive Health – the ICPD and the Convention on the Elimination of All Forms of Discrimination Against Women (Jan 18, 2024) https://www.un.org/womenwatch/daw/csw/shalev.htm#:~:text=Rights%20to%20reproductive%20and%20sexual%20health%20include%20the%20right%20to,in%20their%20availability%20and%20accessibility.
[15] The Convention on Elimination of All Forms of Discrimination Against Women Article 14(2)
[16]The Convention on Elimination of All Forms of Discrimination Against Women Article 16(1)(e)
[17]Dr.Carmel Shalev, Rights to Sexual and Reproductive Health – the ICPD and the Convention on the Elimination of All Forms of Discrimination Against Women(Jan 18, 2024) https://www.un.org/womenwatch/daw/csw/shalev.htm#:~:text=Rights%20to%20reproductive%20and%20sexual%20health%20include%20the%20right%20to,in%20their%20availability%20and%20accessibility.
[18]With Recent Ruling, India Follows Global Trend of Liberalizing Abortion Laws (Jan 19, 2024)
https://reproductiverights.org/india-abortion-mtp-act-supreme-court
[19]The reality of reproductive rights of women: a comparative study of India and the U.S.A(Jan 19, 2024)
[20] Civil Appeal No 5802 of 2022
[21]Adsa Fatima and Sarojini Nadimpally, Abortion law in India: A step backward after going forward( Jan 20, 2024, 9.29 PM) https://www.scobserver.in/journal/abortion-law-in-india-a-step-backward-after-going-forward/
[22] Writ Petition (Civil) No. 1137 of 2023
[23] 410 U.S. 113 (1973)
[24] No. 19-1392, 597 U.S. 215 (2022)
[25] State Bans on Abortion Throughout Pregnancy (Jan 20, 2024)
https://www.guttmacher.org/state-policy/explore/state-policies-later-abortions
[26]Nicole Hassenstab, Globally to Locally, Period Poverty Affects Millions(Jan 21, 2024) https://www.american.edu/sis/news/20230301-globally-to-locally-period-poverty-affects-millions.cfm#:~:text=According%20to%20the%20World%20Bank,use%20during%20their%20menstrual%20cycles.