Reproductive Rights of Women

The rights of women have always been ignored and women have been considered inferior to men. Even today most societies in the world live with this taboo considering women a minority. Over the years many changes have taken place in the situation of women but not considerably. In a lot of countries especially in a country like India women are not encouraged to avail their rights. In this article, the author would be discussing the reproductive rights of women in India.

Introduction

It’s been seventy years since India got independence from the colonial rule but it has failed to get itself independent from the old taboos and dogmas which persist in Indian society related to women. Recognition of reproductive rights of women still remains ignored. Even if these rights are understood, they remain limited to few issues such as child marriage, female feticide, sex selection and menstrual health and hygiene issues.

Even on a global level, reproductive rights of women have often been ignored, neglected, denied and violated. However, the promotion and protection of reproductive health of women have evolved over time as individual and organizations have catered to the urgent needs of the people and gathered the courage to voice their fears, anger and demand for change.[1] The reproductive rights of women are related to various human rights, including the right to life, right to health, right to education, right to be free from torture, right to privacy and prohibition of discrimination.[2] The nations have an obligation to protect, fulfil and respect rights related to the reproductive health of women. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[3], adopted in 1979 clearly states that women’s right to health includes their sexual & reproductive right.

Origin

The demand for reproductive rights of women was raised with the beginning of “The Women’s Health Movement” which emerged during the 1960s and 1970s. The major issue of the second wave of feminism which started in the U.S. was the health rights of women. The right to use contraceptives, right to abort and female reproductive rights were greatly stretched during this time.  In the landmark judgment of Griswold v. Connecticut[4], the Supreme Court declared that the Connecticut statute forbidding the use of contraceptives by married couple violates their right to privacy. Women were granted right to abort in a famous case of Roe v. Wade[5]. The court held that only a pregnant woman and her attending physician can make the decision whether to terminate the fetus or not.[6]

In India, reproduction rights of women began to be recognized with a victory of feminist movements in Bombay which started in 1982.[7] The campaign worked around how medical techniques such as ultrasound were misused to determine the sex of an unborn child.[8] The campaign led to the enactment of the law in 1998, banning these techniques in Maharashtra, making Maharashtra first state to enact such a law.

Judicial Recognition Of Reproduction Rights

The apex court of India and various High Courts of the states have taken an important stand in recognizing the denial of reproductive rights as a violation of fundamental and human rights of woman. Supreme court has time and again passed various judgments that have established legal rights of women to reproductive health including maternal health, access to safe contraceptives, prevention of child marriage, right to abortion and prevention of forced and unsafe abortion. Indian courts play an important role in securing reproductive rights of women.

Maternal Health

It is a condition of women health during pregnancy, childbirth and the postpartum period. In 2008, a series of PILs were filed in various High Courts throughout the country by Human Rights Law Network seeking transparency and accountability for pregnancy-related deaths and injuries, leading to the judgment making women’s right to survive pregnancy and childbirth as a fundamental right under Article twenty-one of the Constitution.[9]

The Delhi High Court passed a joint decision in the cases of Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors. and Jaitun v. Maternity Home, MCD, Jangpura & Ors.,[10] which concerned the denial of maternal health to two women living below the poverty line. The Court held that “these petitions focus on the two inseparable survival rights of women that form part of the right to life under article twenty one: the right to health (which includes the right to access and receive a minimum standard of treatment and care in public health care facilities) and in particular the reproductive rights of the mother.”[11]

In 2012 Madhya Pradesh High court in the case of Sandesh Bansal v. Union of India, public interest litigation rejected financial constraints as the ground for violation of reproductive rights. The court held that government obligations under article twenty-one of the Constitution require the implementation of maternal health guidelines under National Rural Health Mission.

Contraceptive Access

Several claims have been raised in the Supreme Court and the high court regarding the access to safe sterilization and lack of access to a range of contraceptive methods. In a case before Supreme Court in 2016[12], the court recognized women’s autonomy and gender equality as core elements of women’s constitutionally-protected reproductive rights.

Abortion & Forced Pregnancy

In India, women are forced to abort a child if it is found to be a female fetus. The family of the women forces her to abort it, even if she doesn’t want so. In 2004 Supreme Court undermined women’s right to abortion and sterilization by declaring that her decision to undergo an abortion without the husband’s consent constitute mental cruelty.  However, in recent judgments, this thing has been challenged and overruled. In 2011 Punjab & Haryana High Court in a case where a woman underwent abortion without husband’s consent held that it is the personal decision of a woman to give birth to a child. Medical Termination of Pregnancy Act provides that only consent of women undergoing termination of pregnancy is required.

Child Marriage

Several High courts in India have declared child marriage as the violation of human rights. Delhi High Court raised a concern that child marriage makes young girls vulnerable to domestic violence, sexual abuse and social isolation. The court held that child marriage is in violation of “right to lead a life of freedom and dignity.” Madras High Court in 2015 in the case of M. Mohammed Abbas v. the chief secretary, confirmed the prohibition of child marriage act. 

Surrogate Mother: Threat To Reproductive Health

Fertility and childbirth are considered one of the most important aspects of family and society.[13] However, infertility or inability to give birth to a child is considered as one of the greatest problems in human lives. Due to the increased advancements in science and technology, scientists have come up with the concept of surrogacy, however, this treatment involves a lot of complexities.[14] The concept of “commercial surrogacy or womb for rent”[15], is an emerging business in India due to the availability of cheap services. However, the practice of surrogacy is more of an exploitation of surrogate mothers than an opportunity for infertile women. Surrogacy contracts are dehumanizing as they do not look into the perspective of a surrogate mother, and her feelings about her pregnancy. For her, it is the way of earning money and she does not grow any special bond with the child. Most of the time surrogate mothers are unaware of their legal rights and due to lack of financial assistance, they are unable to avail services of the lawyer.

Ministry of Women and Child Development is working towards introducing surrogate motherhood legislation. The law commission of India in its 228th report submitted “Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligation of Parties to a surrogacy.”[16] The surrogacy bill was first introduced in the parliament in 2014 “to provide for the regulation of surrogacy and for matters connected therewith or incidental thereto.”[17] However, despite various efforts, no enactment has been made. 

Conclusion

Reproductive Health of the women is in danger in today’s world due to a lack of awareness and the dogmas present in society. Women need to become aware of their situation and stand up for their rights. However, the situation is fast-changing, the whole world has now recognized the reproductive rights of women as the right to healthcare. Various International conferences have taken place to recognize the rights of women. In India, due to Judicial intervention, reproductive rights of women have been made part of the fundamental rights under Article 21. They have made reproductive rights of women as a part of right to life, right to health, right to equality, right to freedom. Various acts have been passed in the parliament to protect the reproductive rights such as Medical Termination of Pregnancy Act, Pre Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, Prevention of Child Marriage Act. Still, various bills are pending before the parliament such as Surrogacy (Regulation) Bill, 2020.


[1] Isfahan Merali, “Advancing Women’s Reproductive and Sexual Health Rights: Using the International Human Rights System” 10 DIP 609 (2000).

[2] Sexual and reproductive health and rights, available at https://www.ohchr.org/en/issues/women/wrgs/pages/healthrights.aspx (Visited on May 28, 2020).

[3] Convention on the Elimination of All Forms of Discrimination against Women, 1979, available at https://www.un.org/womenwatch/daw/cedaw/ (Visited on May 28, 2020).

[4] Griswold v. Connecticut [1965] 381 US 479

[5] Roe v. Wade [1973] 410 US 113

[6] Ibid.

[7] Geetanjali Gangoli, “Reproduction, Abortion and Women’s Health” 26 SS 83 (1998).

[8] Ibid.

[9] Reproductive Rights in Indian Courts, available at file:///C:/Users/Dell/Downloads/Reproductive-Rights-In-Indian-Courts.pdf (Visited on May 30, 2020).

[10] Laxmi Mandal v. Deen Dayal Harinagar Hospital (2010) 172 DLT 9.

[11] Ibid.

[12] Devika Biswas v. Union of India (2016) 10 SCC 726.

[13] Marjan Goli, “Reproductive and Sexual Health of surrogate mothers, developing a care program: a protocol for mixed methods study” 16 RH (2019).

[14] Ibid.

[15] Anu, Pawan Kumar “Surrogacy and women’s right to health in India: Issues and perspective” 57 IJPH 68 (2013).

[16] Law commission of India Report 228, 2009, available at http://surrogacylawsindia.com/admin/userfiles/file/report228.pdf. (Visited on May 30, 2020).

[17] Surrogacy (Regulation) Bill, 2014 (Bill No. 61 of 2014)

Aaina Mittal from Dr. B.R. Ambedkar National Law University, Haryana

As a student of law, Aaina’s goal is to become a successful litigator. She likes to researching on various legal issues and painting is her passion.

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