ABSTRACT
In India’s intricate legal fabric, when a lens is placed for scrutinizing the thread between the Right to Abortion of transgender and Constitutional Values, it appears as a dramatic entwinement between cultural shift and legal doctrines. This exhaustive study attempts to create a balanced narrative around the various façades of this emotionally delicate and nuanced issue. The core of this odyssey is to scrutinize the Indian legal framework for reproductive rights, particularly under the Medical Termination of Pregnancy (MTP) Act, 1971, with a discerning eye on its 2021 amendments. The Right to privacy and Right to Equality emerge as a substratum concept, advocating the intrinsic worth of human autonomy while addressing actual discrepancies in the realm of Reproductive justice. Despite the judicial attempt to recognize reproductive autonomy for all pregnant persons, the act’s gendered language further exacerbates the barriers for the transgender community. Beyond the hallowed halls of courtrooms, the monograph lifts its converse by reviewing the evolving ideas of legal scholars and professionals while also capturing the personal narrative and impassioned voices of people to understand the situation that marginalizes transgender.
The emotional tempo is fuelled as the author critiques the MTP Act’s doctor-centric approach and its failure to transfer decisional power to pregnant individuals forcing them towards unsafe abortions. This plea for justice accentuates the obligation to not only reorganize but also preserve of the rights of people suffering. The paper tries to understand the intricate dance between academic rigor and emotional aspect while advocating for transitioning reproductive rights from conditional to absolute. The author would like to question “Is reproductive rights an actual Right, or is it a mere Veil?”
KEYWORDS
Abortion, MTP Act, Reproductive rights, Reproductive health, Transgender
INTRODUCTION
Reproductive rights are fundamental rights that empower women to make informed decisions about their reproductive health and personal autonomy. These rights are a kaleidoscope of rights encompassing much more than mere right to abortion. These rights ensure women have access to safe pregnancies, access to necessary supplies, and competitive healthcare right from the start of the menstrual cycle till the menopausal state. The right to reproductive health is not just a privilege but a shield to protect her well-being, freedom, and dignity. But are women aware of such rights? Are they able to implement these rights or is there still a barrier, an obstruction created by the social taboo of this patriarchal society?
The reality is staked as women continue to be deprived of many rights, the most critical being the right to their bodily autonomy. Despite advancements, many women still face cultural and socio-legal barriers created by the patriarchal society, preventing them from making decisions that impact them the most. When women are struggling to secure these basic rights, one can only imagine the atrocities that a Trans-person has to undergo to access the basic right. In today’s era where the community and judiciary are trying to make an inclusive society, where trans-genders are also a part, these barriers which are often legal and institutional make it arduous for them to access their reproductive rights.
Furthermore, reproductive rights in India are entwined in a complex swirl of legal, medical, and social hierarchies. While the MTP Act legalizes abortion, its framework is formulated by centering cisgender women and marginalizing transgender and non-binary individuals. Thse 2021 amendments did not fall not further from the tree, as even though extended the gestation limit for abortion, and undertook unmarried women under its purview, it too discarded the issue of non-inclusive language and gatekeeping mechanism that hierarchize medical and judicial authority over a person’s right of choice and bodily autonomy. Through this paper, the author examines how the MTP Act’s cis-normative framework and gendered language of the law overwrites the enshrined rights of dignity, bodily autonomy, and equality for the transgender community further widening the gap.
Research Methodology
This study plays with a mixed-method approach to study the research gap in this article. The author conducts an in-depth analysis of legislation texts and judicial rulings. Additionally, the author reviews secondary sources from public health data on unsafe abortion, conferences, seminars, and view of scholars to get their insights on the intertwining of gender identity and reproductive justice.
LITERARY REVIEW
Reproductive rights are one of the burning issues that need attention, particularly in the perspective of transgender individuals in India. The research on the same reveals grey areas and challenges that persist despite the legislative Advancements. These gaps can be categorised mainly in the following four:
- The crisnormative language, usage of the word “women” excludes transgender pregnant individuals, compelling them to steer towards unfriendly healthcare system which are underprepared to recognize their Identities.
- Medical Paternalism continues regardless of the 2021 amendments, as access to abortion remains dependent on doctor or judicial approval rather than individual autonomy, reinforcing power differences between patients and providers
- The studies revolving around the Privacy vs. State Control poses as the biggest issue even after the judiciary’s decision in multiple cases which made abortion a pro-choice and validated it as a privacy right under Art 21, the MTP Act imposes procedural hurdles, such as mandatory medical consultation and judicial review for late abortion, contradicting the principle, empowering the state control over bodily autonomy.
- The in-depth analysis on previous researches done by scholars, like researches on declarations, including The Vienna Declaration and Programme of Action (1993) and the Beijing Platform for Action (1995); or scholarly review, like Unsafe Abortion by Continental Hospitals, Exploring the Right to Abortion in India by NLU Delhi; or books like Handbook on Rights to cohabitation of Queer Person and Advocacy Manual on Legal Regulation of Abortion in India by OP Jindal, narrates the challenge of unsafe abortion even after years of legalization of Abortion and it being considered as the Legal right.
These gaps opens a new perspective towards the legal framework and accuses it of favouring cisgender women while marginalizing transgenders and no-binary people further fuelling barriers.
REPRODUCTIVE RIGHTS CONSTITUENCY
The Vienna Declaration and Programme of Action (1993) and the Beijing Platform for Action (1995) are foundational documentation in the international human rights regime which had a significant role in strengthening women’s autonomy and reproductive rights. The Vienna Declaration which emerged from the World Conference on Human Rights, though not explicitly focused on reproductive rights, is the manifestation of the creation of a framework for the recognition of reproductive rights by reaffirming, the universality, indivisibility, and interdependence of all human rights and emphasizing states’ responsibility to eliminate discrimination. The Beijing Platform for Action, adopted at the Fourth World Conference on Women, offered a detailed blueprint for achieving gender equality while focusing on 12 critical areas of concern, including women’s health and reproductive rights. This was a final push for universal progress while underscoring the right of women to make informed choices about their reproductive lives and access to quality reproductive health services
Reproductive rights as seen above is born from established human rights protection thus they are a cobweb of wide range of fundamental right. These rights cannot be protected without certifying the protection of the individual’s right of determination as to whether they want to bear a child or not, their own control over their body and sexuality while also having access to sexual and reproductive health information and services. Now that we are aware of the background of these rights let’s see the twelve human rights that played the key to reproductive rights evolution:
- “The right to life;
- The Right to Liberty and Security of the Person
- The Right to Health
- The Right to Decide the Number and Spacing of Children
- The Right to Consent to Marriage and Equality in Marriage
- The Right to Privacy
- The Right to Equality and Non-Discrimination
- The Right to be Free from Practices that Harm Women and Girls
- The Right to be Free from Torture or Other Cruel, Inhuman, or Degrading Treatment or Punishment
- The Right to be Free from Sexual and Gender-Based Violence
- The Rights to Education and Information
- The Right to Enjoy the Benefits of Scientific Progress
WHO defines reproductive rights “as the recognition of the basic rights of all couples and individuals to decide freely and responsibly the number, spacing, and timing of their children, and to have the information and means to do so, free of coercion, discrimination, and violence” The former part further validates the point that it’s not only about right of abortion but is an intricate fabric of many choices and decisions while the later validates that transgender also have reproductive rights thus advocating that they should also have access for the same. Furthermore, reproductive justice can be ensured only when Individuals are made aware of these rights and, without discrimination can access these rights. This illustrates the interconnectedness of civil, political, and reproductive rights and demonstrates the realization that one cannot be achieved without the other.
ABORTION RIGHTS AS PRIVACY RIGHTS: A HOLLOW PROMISE?
The history of abortion in India began with criminalization of abortion by the Britishers via the Indian Penal Code of 1860. In 1971, through the enactment of Medical Termination of Pregnancy (MTP) Act abortion was made legal under definite justification including health risk and cases of Rape or incest, the same faced criticism for its circumscribing nature. The main revolution in realm of abortion was the MTP Amendment in 2021 which expanded the access by allowing abortions up to 24 weeks for certain cases, while including unmarried women under its preview. These changes indicated the birth Reproductive rights in India.
As discussed above Right to reproductive rights and right to privacy goes hand in hand the same supported by the constitutional recognition of abortion as a privacy right under the judgment given by Justice K.S. Puttaswamy v. Union of India (2017). But this remains illusionary for the transgender individuals who often gets tangled due to the MTP Acts procedural mandates and cis-normative framework depriving them of their right to privacy. Despite the judicial affirmation of bodily autonomy as per the NALSA, 2014 and reproductive decision rights as discussed under X v. Health & Family Welfare Department, 2022, the law remains inclined towards doctor and court’s approval for abortion, epically for the transgender community posing a threat to their privacy. Furthermore, they face additional hurdles such as identification document mismatches and societal stigma further expediting them towards unsafe abortion. These indicates that the privacy promises remains a hollow promise for transgender communities as procedural barriers often gives control to state and institution over their bodily autonomy rather than it being their choice.
CISGENDER BIAS IN THE MTP ACT: A TRANSGENDER PERSPECTIVE
The use of gendered language i.e. the repetitive use of word “women” excludes transgender and non-binary individual capable of pregnancy often leading to discrimination in healthcare settings. Despite the enactment of Transgender Persons (Protection of Rights) Act of 2019, which ensures non-discrimination and promotes gender identity, transgender individual persists to face significant barriers in accessing reproductive healthcare. Many healthcare providers are reluctant in providing reproductive care services due to legal ambiguities and a lack of specific guidelines on transgender healthcare needs, including abortion, contraception, information on bodily changes and assisted reproductive techniques. Furthermore, the documentation barriers pertaining to obtaining ID proofs that aligns gender identity further complicates access to clinics. This exclusion impairs the existing susceptibilities, as transgender individuals already face higher rates of violence, discrimination, and economic hardship. The Act’s failure to address transgender-specific needs renders abortion rights a privilege rather than a guarantee for this marginalized community The inclusiveness of gender neutral language of the act, by using terms like “individual with uterus” or “pregnant individual” rather than “women” will help in achieving the dream of reproductive justice for all. The first step is taken by the judiciary when a bench headed by Justice DY Chandrachud said “Before we embark upon a discussion on the law and its application, it must be mentioned that we use the term woman in this judgment as including persons other than cis-gender women who may require access to safe medical termination of their pregnancies.” Now it’s the turn of legislative to play its part in this fight of reproductive justice of transgender.
POWER DYNAMICS: DOCTORS VS. PREGNANT PERSONS
In a comparison the author found the following, first, legal recognition of right of abortion for a cisgender women is explicit but the same is dependent on judicial interoperation for transgender, Second, access to clinics for a cisgender women is often conditional but for transgender individual it’s often denied without explicit reason, and lastly the risk of prosecution is low for cisgender women but high in transgender individual due to mismatch in identity. Does this not imply that the doctors or the judiciary have the power over the bodily autonomy and reproductive right rather than the power being with pregnant person. This is further backed by the studies on The Medical Termination of Pregnancy (MTP) Act which reinforces a power dynamic that favours medical practitioners over pregnant individuals especially transgender person. Despite the 2021 amendments extending the timeframe of abortion to 24 weeks under specific circumstances, the law still requires doctor’s approval for all abortion up to 20 weeks and sometimes even for early pregnancies, unlike any other medical procedure. This requirement perpetuates medical paternalism, where the final decision rests with healthcare providers rather than the individuals seeking care. This dynamic is exacerbated for transgender due to the additional barriers such as social stigma, personal believes and moral ground due to which the providers deny them of abortion further marginalizing those who already face systemic discrimination. Consequently, the empowerment promised by legal amendments remains illusionary and the power patriarchally remains with medical professionals a voices and choices of pregnant individual especially transgender individuals are often supressed due to the clinical decision-making processes further depriving them of their reproductive rights
THE UNSAFE ABORTION PARADOX
Despite legalization of abortion for over fifty year in India, access to safe abortion services remains an issue particularly for transgender individuals. Unsafe Abortion is defined as “The termination of a pregnancy performed by individuals lacking the requisite medical expertise or in environments that fall short of acceptable health standards” thus posing as a serious health concern. The risks of this practice is inclusive and not exhaustive of infection, further complication, haemorrhage and maternal death. Unsafe abortion amounts up to 8%. Of maternal death. This situation is more calamitous for transgenders as they face an additional level of hardship due to the existing social stigma often leading medical professionals and clinics to refuse care to them. This is further exacerbated due to the economic hardship depriving their access to private healthcare pushing them towards the choice of unsafe abortion. Furthermore restrictive laws, limited access to contraceptives, fear of humiliation and discrimination works as oil to fuel. This crisis is a grave reminder of the need for compassionate reform ensuring actable and accessible healthcare for all.
CEREBRAL NARRATIVE
The author got in touch with few Advocates, law students, Doctors and people during her research and asked them their views on the issue of transgender rights to reproductive Justice. The author had formulated four questions regarding the same, the questions being:
- Are you aware that transgender is a recognized gender in India?
- Are you aware that transgender also falls under the category of pregnant individual?
- What is your take on including them in MPT Act? What are your views on the usage of gender natural terms in the Act?
- As a Doctor/Advocate/Law student what is your opinion on the over issue of them getting reproductive justice?
The responses received were mixed opinions about the same. While many were aware that transgender is recognized as a gender, many had difference of opinion on the same. Many Advocates, folks and law students were shocked to know that transgender could bear children. This unawareness of people, epically the protector of law, deeply upset the author and gave a ground reality of why the law is excluding transgender. It is the lack of awareness, social stigma, and biased opinion which further increase the struggle of Transgender in the fight of reproductive rights. Furthermore, many Advocates and medical practitioners were of the opinion that a gender-neutral language in the law is a vital objective to help Transgender people access their reproductive rights thereby upholding the constitutional principles of Right to life and right to personal autonomy. Moreover they were of the view that sometimes doctors acts as gatekeepers in order to protect themselves from prosecution and such can only change by de-criminalization of abortion under other acts. They also suggested that inclusive healthcare facilities should be made available to transgenders in order to ensure safety of their reproductive health and to create a safe zone to protect their privacy and bodily autonomy while respecting their right of choice about the same and helping them in their fight for reproductive justice.
SUGGESTION
Even though abortion is legalized in India, pregnant individuals are forced towards Abortion due to the lack of gender-inclusive language in the MPT Act and Societal discrimination. The author advocates the reformation of these restrictive and regressive laws by adopting the more gender-neutral language, by replacing “Women” with terms like “pregnant person” or Individual with a uterus” this can be done by referring the current change in amendment which changed specific terms like “mentally ill person” to “lunatic” or “husband” with “partner”, making it more gender-inclusive. This reform will act as a stepping stone toward the recognition of their reproductive rights making them on equal footing with cisgender women. Additionally, the author suggests decriminalization of abortion under BNS to remove the fear of prosecution from doctors, as legislative paralysis prolongs the exclusion. The author also stresses the importance of trans-inclusive healthcare policies, mandatory gender-sensitivity training for providers, and simplified ID requirements as they are the urgent need to bridge access gaps for safe healthcare of marginalized individuals, the same mandated by NALSA Judgment and Transgender Person (protection of rights) Act,2019. The availability of constrictive pills, and medication coupled with the adoption of a non-judgmental policy is essential to prevent unsafe abortion while safeguarding their right and fostering an environment of equitable justice. Furthermore, when advocates, posed as protectors of the law are not educated about these rights, how will they effectively protect them? It therefore necessitates raising public awareness about their issues and ensuring that healthcare providers and advocates are educated about the rights and healthcare needs of transgender persons to prevent discrimination. Moreover, the author is of the view that the core principles of medical practice are medical ethics & non-maleficence toward the patient thus they should ensure that they do not act as gatekeepers, further complicating the already exclusionary legislation and making it further difficult for transgenders to access reproductive justice.
CONCLUSION: THE PLEA FOR JUSTICE
“Reproductive rights are basic human rights”- Hillary Rodham Clinton
Transgender individuals should be granted justice according to natural justice to have their bodily autonomy and to live their life peacefully. They should be given a chance to be accepted as they are and be treated as a member of the existing society. They should not feel humiliated in the present society compelling them to start a parallel society that accepts them as they are “human beings” and not “as an alien entity”; they are just as normal as cis-gender, and they would like to have their right of choice, their right to bodily autonomy their right of Reproductive justice. The evolving discourse of reproductive rights underscores the critical need for gendered-neutral language as well as access to safe abortion services, and healthcare facilities to protect the health and autonomy of transgender Individuals. One of the main step towards reproductive justice of transgender will be perceiving the Idea that a pregnant person is not always a cis-women. This research paper is a plea of the author to raise awareness of discrimination and injustice faced by Transgender and non-binary individuals. Reforming abortion rights by shifting the power from doctors and lawmakers to “pregnant individuals” will make it more of a right than a conditional privilege while affirming that reproductive justice hinges not on gender identity or marital status but on the sacrosanct authority of all pregnant individuals. The author would like to rest the paper by compelling one to ponder whether the law genuinely empowers these individuals or merely legitimizes state control over reproductive choices.
Name of the Author: Janhvi Tripathi
College: ISBR Law, College