NAME -LAVANYA YADAV
ABSTRACT
It’s not just a matter of right, but a matter of life. This paper is premised on the notion that women’s right to choose their way to motherhood is not just a human right but a much needed fundamental right as incarnated under Article 21 of the Indian constitution. In order to enable women to exercise individualism in connection to their reproductive and sexual health within their societal, economic, and political settings, women’s reproductive potential was converted from an object of controlling the population. In addition to their status quo in society and ubiquitous gender discrimination, women’s access to medical care affects their overall health and their reproductive and sexual wellness in particular. The empowerment of a woman is not just about her education and employment but also about her choice to reproduction and her sexual health, at last it is her body. Several laws that has been enacted for such upliftment are, Medical Termination of Pregnancy Act, 1971, Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, etc. In countries like Norway, Finland, USA, etc, are the countries that have successful implementation of laws but countries like Afghanistan, Syria, etc, have the worst conditions. Whereas countries like India, is trying its best to develop laws on women’s reproduction. Usually, patriarchal societies like India, judge women on her capability to reproduce which a very vague thing. A woman has complete right to choose whether she wants it or not. This is the reason that a law on women’s health has always been a blind spot in the legislation process. But after the advancement of technologies like surrogacy, intergovernmental policies, legal supports, etc. are the factor that contributes towards empowerment of women’s reproductive laws. Hence, this paper phenomenalises on women’s problems, their experience, and a panacea to it.
Women who don’t control their own reproductive rights are not free – Ani Difranco
Women’s human rights involve the right to avoid violence and cruel, inhuman, and degrading treatment, as well as the right to equality, dignity, autonomy, information, and bodily integrity, as well as respect for private affairs and the highest achievable standard of wellbeing, including reproductive and sexual health, without discrimination.
The freedom of a woman or girl to adopt informed decisions regarding her body and reproductive processes is vital to her right to equal treatment and privacy as it relates to concerns of personal bodily and psychological integrity3. Access without prejudice to inexpensive, high-quality contraception, particularly emergency contraception, is part of reproductive health equality.
Societies where women have access to information and all forms of contraception and have the legal right to terminate pregnancies have the lowest incidence of abortion. According to the WHO, an approximated 225 million women do not have access to needed modern contraception.
Not all regional constitutional courts have sustained the commitment to women’s human rights surrounding termination of pregnancy, as evidenced by the rulings of the Supreme Court of the United States in Roe v. Wade and most prominently the Colombian Constitutional Court. In its recent majority opinion on National Healthcare funding for women in Northern Ireland performing abortions in the United Kingdom, the Supreme Court of the United Kingdom deferred to the representative democracy will of the North Ireland senate in its prohibition of sterilization in cases other than the preservation of the pregnancies woman’s life, putting women’s fundamental rights to autonomy, health, and equality in the hands of a popular vote instead of respecting, protecting, and rewarding individuals as human rights and therefore violating them.
This article examines the current state of women’s reproductive rights from a legal perspective, focusing on the various legal frameworks governing reproductive healthcare and the ongoing legal challenges faced by women seeking to exercise their reproductive rights.
Institutional Structure of International Law
Several international legal frameworks, such as the International Covenant on Economic, Social, and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the International Conference on Population and Development, reflect the
recognition of reproductive rights as a fundamental human right. These international legal frameworks include the International Covenant on Economic, Social, and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the International Conference on Population These frameworks acknowledge that women’s reproductive health and access to reproductive healthcare services are essential components of women’s human rights, and they call on states to promote and protect these rights. In addition, reproductive health and access to reproductive healthcare services are recognized as important components of women’s human rights.
Structure of the Legal System at Home
In many nations, reproductive healthcare and rights are governed by local legal frameworks. These legal frameworks may include legislation pertaining to contraception, abortion, and reproductive health services. These laws are distinct in each country since each nation has its own culture, religion, and set of political ideas, and each country’s laws reflect those differences. There have been continuous legal challenges to reproductive rights in some nations, such as the United States. Advocates have been fighting to protect access to abortion services and other reproductive healthcare services.
Women continue to encounter legal obstacles and impediments that prevent them from gaining access to reproductive healthcare services, despite the fact that reproductive rights have been acknowledged as a fundamental human right. These difficulties might manifest themselves in a variety of ways, such as discrimination on the basis of gender, colour, or socioeconomic status; restrictive laws and policies; limited access to healthcare services; and limited access to healthcare services.
The rights of women to control their own reproduction are an essential component of human rights that are recognised by both international and domestic legal frameworks. Although though there has been substantial development in the field over the past few years, women still face significant obstacles when attempting to receive reproductive healthcare services, particularly those pertaining to abortion services. As a result, continual lobbying and activism are required in order to defend and promote reproductive rights, and to guarantee that every woman has access to the care and resources she requires in order to make decisions about her body and her future.
Legal Obstacles Faced by Women Want to Exercise Their Reproductive Rights
Women’s reproductive rights have been a contentious issue for decades, with legal challenges at every level of government. These challenges encompass a wide range of issues, from access to contraception and safe abortion services to the right to make informed decisions about one’s own reproductive health. Despite significant progress in the past, there are still many legal challenges to women’s reproductive rights that continue to this day.
One of the most significant challenges to reproductive rights is the ongoing battle over access to safe and legal abortion services. Abortion has been legal in the United States since the landmark Supreme Court decision in Roe v. Wade in 1973, but opponents of abortion have been working tirelessly to roll back those protections ever since. In recent years, several states have passed laws severely restricting access to abortion, including so-called “heartbeat” bills that ban the procedure as early as six weeks into a pregnancy, before many women even know they are pregnant. These laws have been met with legal challenges from reproductive rights advocates, who argue that they are unconstitutional and violate women’s rights to make decisions about their own bodies.
One of the most notable legal challenges to abortion rights was the 1992 Supreme Court case Planned Parenthood v. Casey. In that case, the Court upheld the basic right to abortion established in Roe v. Wade, but allowed states to place restrictions on the procedure as long as they did not create an “undue burden” on women seeking abortions. This decision opened the door for a wave of state-level restrictions, including mandatory waiting periods, ultrasound requirements, and other obstacles that make it difficult for women to access safe and legal abortion services.
Another major challenge to reproductive rights is access to affordable contraception. The Affordable Care Act (ACA) mandated that insurance plans cover birth control without copays or deductibles, but that provision has been under attack since its inception. In 2017, the Trump administration issued new rules allowing employers to opt out of providing birth control coverage for moral or religious reasons, a move that was widely criticized by reproductive rights advocates. These rules were eventually blocked by the courts, but the issue of access to affordable contraception remains a contentious one.
In addition to legal challenges at the federal level, there are also significant challenges at the state and local level. Many states have laws that restrict access to abortion and other reproductive health services, including requirements for waiting periods, mandatory counseling, and parental consent for minors seeking abortions. These laws disproportionately affect low-income women, women of color, and women in rural areas, who may already face significant barriers to accessing healthcare.
One particularly troubling trend in recent years has been the proliferation of so-called “crisis pregnancy centers.” These centers, often run by anti-abortion groups, masquerade as healthcare providers but do not offer comprehensive reproductive healthcare services. Instead, they often provide misleading information and pressure women to carry their pregnancies to term, regardless of their own wishes or medical needs. Some states have attempted to regulate these centers, but legal challenges from anti-abortion groups have made it difficult to do so effectively.
The issue of reproductive rights is not just a legal one, but also a political and cultural one. The ongoing debates over abortion and contraception are often deeply tied to religious beliefs and moral values, making it difficult to find common ground. However, many advocates for reproductive rights argue that these issues are fundamentally about women’s health and autonomy, and that all women should have the right to make their own decisions about their bodies and their futures.
In conclusion, there are many legal challenges to women’s reproductive rights that continue to this day. These challenges encompass a wide range of issues, including access to safe and legal abortion, affordable contraception, and other reproductive health services. While progress has been made in recent years, there is still much work to be done to ensure that all women have the right to make informed decisions about their reproduction activities.
National Framework for combatting reproductive issues
The National Framework on Reproductive Health in India is an all-encompassing framework that was devised with the intention of enhancing the reproductive health of the people who live in the country. This framework provides a variety of initiatives that are intended at enhancing access to family planning, maternal health, and other reproductive health services. The primary focus of these policies is on meeting the needs of disadvantaged and marginalised groups. The framework
adheres to the tenets of gender equality, rights-based strategies, and evidence-based intervention strategies.
Some of the key laws governing these rights are as follows:
- Medical Termination of Pregnancy Act, 1971
The Medical Termination of Pregnancy Act, which was first passed in 1971 and has since been amended in 1975 and 2002, is the major piece of legislation in India that governs abortions. It was enacted with the intention of authorising the legal termination of pregnancies by registered medical practitioners in the limited circumstances stated in the Act. The Act also outlines the limited circumstances in which it can be used. The law lays out the parameters for when a woman is legally allowed to have her pregnancy ended. Yet, the unborn child is not protected by this measure in any way. Any form of protection that might be afforded to an unborn kid would first and foremost have to be given to the mother.
Background
Before 1971, the Indian Criminal Code, enacted in 1860, considered the intentional termination of a pregnancy by means of an abortion to be a criminal offence that may result in a sentence of up to seven years in jail, a fine, or both. A woman who obtained an abortion was subject to a possible seven-year prison sentence, a fine, or both, depending on the circumstances. Only in extreme cases, such as when the life of the pregnant mother was in imminent danger, was it legal to terminate a pregnancy.
As a consequence of this, women were forced to receive abortions in clandestine settings, where they were frequently not carried out by recognised or competent medical personnel. In most cases, the persons responsible for carrying them out lacked proper training and did not make use of the most effective strategies. Because of this, the rate of maternal mortality increased.
The government of India established The Shah Committee, which was responsible for carrying out an in-depth investigation into numerous aspects of abortion, such as its effects, the demographics of women who seek abortions, and other related topics. It turned out that a significant number of married women seek abortions for various reasons, including health concerns and the desire to control their family size.
In 1966, the Shah Committee recommended that abortion be legalised in order to stop the deterioration of women’s physical and mental health, as well as to reduce the number of deaths caused by pregnancy-related complications for both humane and practical reasons. The accusations that were made by a number of states that the goal of the proposed law was to limit the population were vehemently disputed by the Shah Committee. As a result, the Medical Termination of Pregnancy Act, also known as 197, was passed into law in 1971 and became operational on April 1 of the following year.
Termination of Pregnancy-Time, Circumstances, and Place
Section 3 forbids abortions beyond 20 weeks gestational age. Article 3 mandates only one medical opinion for abortions prior to 12 weeks. If the termination is to occur between 12 and 20 weeks, however, the opinion of at least two medical professionals is required that if the pregnancy is continued: the woman’s life would be in danger; her mental health would deteriorate; there is a risk of grave physical injury to her; the pregnancy is the result of rape; or any contraceptive device has failed.
A forced pregnancy following a rape would be inhumane and cause extreme mental suffering. Hence, neither a hearing nor a verdict is necessary to authorise an abortion. The woman’s claim of rape is sufficient.
Abortion is permitted to spare the woman the mental anguish of an unwanted pregnancy caused by contraceptive failure. The medical staff will assess all relevant factors, such as the woman’s environment or reasonably predicted circumstances.
Consent
The Act cannot terminate a pregnancy without the pregnant woman’s consent.
Incapable consent
If the pregnant woman is minor or unable to consent due to mental incapacity, her guardians must provide written consent.
The New Trend: Surrogacy Brief
Altruistic surrogacy is a form of surrogacy in which the surrogate volunteers to carry the infant of the intended parents in her womb only out of affection for them and compassion for their desire to start a family. This type of surrogacy is not financially compensated.
It is considered an act of commercialization whenever the surrogate is compensated monetarily for the services that she provides. From a long time ago, this kind of commercialization has been the source of infinite suffering for Indians. It is important to be aware that many nations throughout the nation do not sanction the act of carrying a child through surrogacy.
Many in India are still struggling to get their wits all around surrogacy law that was passed in 2022 to put an end to “the practise of hiring wombs.” The law addresses a wide range of issues, some of which are novel and ground-breaking. Yet, the part of the law that requires intended couples to go through the judicial system in order to contract a surrogate is considered to be the bill’s linchpin.
According to the opinions of several specialists, the intervention of the court might put a stop to the widespread practise of profiteering and racketeering that is prevalent in the surrogacy industry, as well as the widespread practise of deceiving and exploiting the participants in the arrangement.
In a related development, the Indian Council of Medical Research published a set of guidelines for the operation of surrogacy clinics in the year 2005. The Assisted Reproductive Technologies (Regulation) Bill received more restrictions from the government later in the year 2010.
Who can surrogate?
Surrogates must be eligible by law. She must be married with a child and 25–35 years old. First- time surrogates are preferred. A psychiatrist must also confirm her mental fitness.3
Surrogacy (Regulation) Bill, 2019
On July 15, 2019, Dr. Harsh Vardhan, Minister of Health and Family Welfare, introduced the Surrogacy (Regulation) Bill, 2019 in Lok Sabha. According to the Bill’s definition, surrogacy occurs when a woman goes into labor on behalf of a couple who plans to adopt the kid.
Specifically, the Bill regulates surrogacy by making altruistic surrogacy illegal but legalising commercial surrogacy. Surrogate mothers who participate in altruistic surrogacy receive no financial compensation beyond what is necessary to cover her medical bills and the cost of insurance throughout her pregnancy. Surrogacy and similar procedures performed for compensation (in cash or kind) beyond the cost of medical care and insurance are considered commercial surrogacy.Surrogacy can legally be used for the following reasons: Surrogacy is legal if it meets the following five criteria: I it is performed for deliberately trying couples who undergo from proven infertility;
(ii) it is performed for altruistic reasons; (iii) it is not performed for commercial purposes; (iv) it is not performed to produce children for sale, prostitution, or other predatory behavior; and (v) it is performed to treat a medical condition or disease that is specifically listed in regulations.
Punishments for infractions: In addition to abandoning, exploiting, or abandoning a surrogate child, the Bill makes it illegal to sell or import human embryos or gametes for the purpose of surrogacy, as well as to engage in or advertise commercial surrogacy. Offenders might face a maximum of ten years in prison and a fine of up to 10 million Indian rupees. Further violations of the Bill’s terms are also criminalised and assigned appropriate punishments in the document.4
Conclusion
So, surrogacy is blessing for those couples who couldn’t have child because of the infertility but were given an option of surrogacy through which they can experience the most memorable moments of their life but it is a curse for an orthodox family where the family wants a boy child. Ans this practice encourage them to have one. Also, one of the major drawbacks of surrogacy is that it is not very affordable and on the top of that it is not properly legislated yet.
Expert’s view
Conclusion
Reproductive laws play a crucial role in regulating the rights and responsibilities of individuals and couples when it comes to reproductive health and family planning. However, there are still many challenges and issues that need to be addressed in this area.
One of the most pressing concerns is the issue of access to reproductive healthcare, particularly in developing countries. According to the World Health Organization (WHO), an estimated 214 million women in developing countries lack access to modern contraception, leading to unintended pregnancies and unsafe abortions. In addition, there are still many countries where reproductive rights are severely restricted, and women do not have the right to make decisions about their own bodies and fertility.
To address these issues, there is a need for greater investment in reproductive healthcare and education, as well as for more progressive laws and policies that support reproductive rights. Countries should also work together to promote and protect these rights, through international agreements and conventions.
In terms of statistics, there has been some progress in recent years. According to the Guttmacher Institute, the global rate of unintended pregnancies declined from 74 per 1,000 women aged 15-49 in 1990 to 62 per 1,000 in 2015. However, there is still a long way to go, and more needs to be done to ensure that every individual has the right and the means to make informed decisions about their reproductive health.
In comparison to international laws, many countries have adopted laws and policies that are more progressive and supportive of reproductive rights. For example, in 2019, Ireland legalized abortion, becoming the last country in Europe to do so. In addition, many countries have expanded access to contraception and family planning services, and have enacted laws to protect the rights of women and LGBTQ+ individuals.
In conclusion, reproductive laws are essential for protecting the rights and wellbeing of individuals and families. However, there are still many challenges and obstacles that need to be overcome, particularly in terms of access to healthcare and education. By investing in these areas and promoting more progressive laws and policies, we can work towards a world where every person has the right to make informed decisions about their reproductive health and future.
Name – Lavanya Yadav
College – O.P Jindal Global University