WOMEN AND REPRODUCTIVE CHOICES

SUBMITED BY-

APOORVA SINGH (ROLL NO: 1385)

CHAHAK AGARWAL(ROLL NO:1387)

Reproductive rights of a woman are legal rights relating to reproduction and reproductive

health. Reproductive rights stand for the recognition of the basic right 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, and the right to attain the highest standard of

sexual and reproductive health. They also include the right of all to make decisions

concerning reproduction free of discrimination, coercion and violence. The above definition

given by the World Health Organisation puts stress upon an individuals autonomy over the

process of reproduction and factors relating to it. It also includes the right to legal and

safe abortion, the right to birth control, freedom from coerced sterilization and contraception,

the right to access good-quality reproductive healthcare, and the right to education and

access in order to make free and informed reproductive choices. Reproductive rights may also

include the right to receive education about sexually transmitted infections and other aspects

of sexuality, and protection from practices such as female genital mutilation (FGM). Despite

many initiatives being taken in the direction not much progress has been achieved especially

when the picture in the small towns and villages is taken into consideration. This project

attempts to analyse the present situation regarding this matter with the help of a few

judgements.

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 SOCIAL CONTEXT

The question which started the movement of womens reproductive rights was who has the

right over a womans body? With the issue of Patriarchy at the root cause,the movement

found its beginning in the formation of small groups around the world that advocated

womens rights over ones own body. Control over womens bodies and sexuality is a crucial

aspect of reproductive freedom. Hence, the womens movement articulated the range of

situations in which patriarchal control over womens bodies expresses itself: from a husband

forcing his wife to have sex to a government forcing a woman to undergo sterilisation. It

critiqued the institutionalisation of patriarchal control over womens sexuality in the form of

monoandrous hetero-sexual marriages and challenged the predominant social norm of

patrilineage that only offers the stamp of legitimacy to the legitimate heir, and severely

punishes sexual expression or reproduction outside marriage. When a woman does not have

bodily integrity, when her body is invaded against her will, when her choices are determined

by social norms rather than personal preference, it is unlikely that she can play an active role

in decision making, be it at the micro household level or macro societal level. In an attempt to

reclaim womens control over their own fertility, and open avenues for autonomy and

decision making in other aspects of life, the womens health movement all over the world has

defended womens right to voluntary maternity through access to safe contraception and

abortion services. This struggle for womens reproductive rights has resulted in the right to

contraception being conceded in many parts of the world, although women still lack easy

access to affordable contraceptives which are free from side-effects. Yet even today, these

services are denied to women in many other parts of the world. Religious and cultural taboos

prevent them from using contraception. In cultures such as India where motherhood is

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glorified and infertility viewed as a curse, the use of contraception is frowned upon. At the

same time, womens groups in third world nations have asserted that the debate on womens

reproductive rights must account for the fact that reproduction is only one aspect of womens

physiology and lives, and cannot be viewed in isolation. They argue that the understanding of

patriarchy must encompass far more complex realities, because we live in societies where

political, economic, cultural and social factors come together to influence womens health

and determine understandings of fertility and infertility, sexuality, reproduction and gender

roles. The Indian perspective on reproductive rights has had to additionally take account of

several other inequalities and contradictions in society. On one hand, traditional feudal

society has sought to regulate every aspect of womens lives. Religion, caste and cultural

values have played important roles in defining and controlling womens fertility. And, sharp

class contradictions have not only created, but also heightened inequalities with a direct

adverse impact on womens health. On the other hand, the history of colonialism has

compounded the situation further by contributing to the systematic destruction of indigenous

structures of healing and health systems, and imposing allopathy or modern western

medicine as the norm. In the present scenario of economic liberalisation, this legacy has

received a new lease of life, resulting in the exploitation of Indian markets and people by

multinational pharmaceutical companies. Coupled together, these factors are causing rural-

urban divides to sharpen further, creating ever-increasing gaps in development and planning,

access to resources and opportunities. In a situation where women have no right to clean

drinking water, basic facilities, health care or education; where society decides where women

will live, how they will live, who they will marry, whether they will study; where the State

believes it has the right to determine how many children women will bear, when they will

get sterilised and what form of contraception women must opt for; it is apparent that the

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struggle for Indian womens reproductive rights needs to go further than reproductive

freedom, and enter the arena of social, economic and political rights.

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 THE ABORTION DEBATE

Till the latter half of the 19th century abortion was legalized in America, with the first abortion

regulation act being passed in Connecticut in 1821 with the motive to act as a poison control

method for the protection of women. The issue started being politicized in 1850 with a

campaign to outlaw abortion which was lead by the American Medical Association (AMA).

The Comstock Act of 1873 made it illegal to mail anything related to contraception and

abortion in America. People like Anne Trow and Ruth Barnett were sent to jail for helping

women with abortions and many women who fought for reproductive rights spent time in jail.

Outrage towards this system began in the 1960s and the movement became on of the fastest

growing ones in American history. Colorado became the first state to decriminalize abortion

followed by Hawaii, New York, Washington and California.

ROE V WADE

Then came the famous case of Roe v Wade 1and the Supreme Court ruled 7-2, that a woman

should have the right to terminate pregnancy based on the right to personal privacy which the

court found implicit in the due process clause in the fourteenth amendment to the US

Constitution. The Supreme Court determined that the due process clause implies that

governments cannot pass legislation that intrudes too deeply into the personal life of its

citizens. There are limits to the ability of states to control personal behavior. The case began

when Jane Roe instituted federal action against Henry Wade, the district attorney of Dallas

county, Texas, where Roe resided. The court attempted to balance a womans right of privacy

with a states interest in regulating abortion. Writing for the majority, Harry A.

1 Roe v Wade 410 U.S. 113.

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Blackmun noted that only a compelling state interest justifies regulations limiting

fundamental rights such as privacy and that legislators must therefore draw statutes

narrowly to express only the legitimate state interests at stake. The court then attempted to

balance the states distinct compelling interests in the health of pregnant women and in the

potential life of fetuses. It placed the point after which a states compelling interest in the

pregnant womans health would allow it to regulate abortion at approximately the end of the

first trimester of pregnancy. With regard to fetuses, the court located that point at capability

of meaningful life outside the mothers womb, or viability. Repeated challenges since 1973,

such as Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992),

have narrowed the scope of Roe v. Wade but have yet to overturn it.

THE INDIAN ASPECT

In India, the Medical Termination Act of 1971 passed by the parliament legalised abortion in

case of grave injury to mental and physical health. This section despite having recognised

the anguish caused by an unplanned pregnancy limits itself to the sole benefit of married

women and does not extend the same rights to unmarried women going through the same

pain of unwanted pregnancy. This indicates that the Act was motivated not by libertarian

ideals but by the need to promote abortion as a family planning too1. Hence, the limited

legalisation of abortion in India was more a fallout of Malthusian fears among policy

makers.2

2 As per Malthus, population increases by geometric progression, while food supplies

increase by arithmetic progression. Therefore, according to the Malthusian model, human

deprivation is the inevitable result if population growth is left uncontrolled. See T. Robert

Malthus, An Essay on the Principle of Population as it Affects the Future Improvement of

Society

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Article 213 of the Indian Constitution guarantees each individual the right to life and personal

liberty except according to a procedure established by law. This right is granted to a woman,

and includes her right to privacy, right to make reproductive choices, right to reputation, right

to live with dignity, right to health and medical care etc.

The landmark case of Maneka Gandhi v. Union of India4established that fairness, justice and

reasonableness constitute the essence of the right to life and liberty as epitomized in Article

21. It was in the Maneka Gandhi Case that the honorable Supreme Court laid out the

principle that Article 14, 19 and 21 are not mutually exclusive, but they sustain, strengthen

and nourish each other.5 Life does not mean a mere anima l existence but something more

than it6. It was also held while deciding the Maneka Gandhi Case that the procedure so

established by law cannot be arbitrary, unfair or unreasonable. 7By not allowing women

abortion after 20 weeks of pregnancy, the provision stands to be unjust and unfair to them as

women should have unrestrained freedom and rights over their body, their baby and their life.

So, it directly violates the principles of Article 21 as expounded by the Honorable Supreme

Court in the Maneka Gandhi Case.

3Article 21, The Constitution of India, 1950.

4Maneka Gandhi vs. U.O.I. , AIR 1978 SC 597.

5Supra. 4

6Munn vs. Illinois, 94 US 11.

7Supra.4.

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Also, right to make a decision about an abortion includes the right not to reproduce as

highlighted in the case of B.K. Parthasarthi v. State of Andhra Pradesh And Ors. 8A womans

right to privacy is violated if she is not allowed to abort post 20 weeks of pregnancy. In

Suchita Srivastava v. Chandigarh Administration 9, a womans right to make reproductive

choices was held as a dimension of personal liberty and such choices could be exercised to

procreate as well as to abstain from procreating. Hence, womens right to privacy, dignity and

bodily integrity should be respected by giving them the right over their abortion.

There may be exceptional cases when a woman gets pregnant out of rape. However, due to

unavoidable circumstances, she reaches her 21st week of pregnancy and then decides to abort

her child. Why does it become all the more reasonable to give her the right to abort? In a

country like India, a rape victim is looked down upon. Her reputation in the society is

affected. If a child is born out of rape, the child so born often becomes a constant reminder to

the woman of the unfortunate incident. The society often and mostly disapproves of the

illegitimate child. The child is subjected to suffer from an identity crisis. The reputation of

both the mother and the child will be affected. In cases like these, it becomes justified for the

women to ensure her dignity and reputation. Thus, in such cases as mentioned earlier,

woman's right to abort after 20 weeks of pregnancy will uphold her right to reputation.

Assuming that the mother cannot take the pain of the fetus in her stomach or is physically or

mentally unfit to do so and needs abortion, she should be given such a right because she has

the right to health and medical care.

8 B K Parthasarthy v state of Andhra Pradesh, AIR 2000 ALD 199.

9SuchitaSrivastava vs. Chandigarh Administration, AIR 2009 SC 5845.

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These are some of the many instances that bring up the need for giving women the right to

decide for their own abortions.

Doctrine of ultra vires states that provisions of a Statute or an Act should not go beyond the

scope of the Act or should not be inconsistent with the objectives of the Act. Any provision

violating this doctrine will be violating Article 14. According to the objects and reasons of the

MTP Act of 1971, there were three grounds on which the Act was formulated, namely health

grounds, humanitarian grounds and eugenic grounds. However, inconsistencies existing

between section 3 of the MTP Act and its objects and reasons violates the doctrine, and

hence, Article 14.

In L.C. v. Peru10 the pregnant mother who gets to know that she has cancer in her 22 nd week

of pregnancy is not operated. It is utterly unfair to not allow the mother to evade danger to

her mental and physical existence just because she is in her 22 nd week and does not comply

with the Acts objective of health.

In Chandrakant Jayantilal Suthar and Ors. v. State of Gujarat. 11 a raped poor is not allowed

to abort because she is 21 weeks pregnant. Is it unjust to the humanitarian objective of the

MTP Act.

In cases like K.L. v. Peru12, the mother in her 23rd week of pregnancy gets to know that the

fetus suffers from an incurable consequential disease but is not allowed abortion. It does not

comply with the eugenic objective of the Act.

10L.C. vs. Peru, CEDAW/C/50/D/22/2009, United Nations Committee on Elimination of

Discrimination against Women.

11Chandrakant Jayantilal Suthar and Ors .v. State of Gujarat, AIR 2015 SC 668 .

12K.L. v. Peru, CCPR/C/85/D/1153/2003, UN Human Rights Committee.

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These prove that by not allowing abortion at later stages of pregnancy as per Section 3, the

three basic objectives of the MTP Act are not being fulfilled, violating the ultra vires doctrine

and finally, Article 14 of the Constitution of India.

THE BOMBAY HIGH COURT JUDGEMENT

In a recent judgment by the Bombay High Court on 19 th September 2016, the division bench

interpreted the provisions of the MTP Act,1973 in a new light. The case arose out of a suo

moto PIL, which itself had arisen out of concern with the deplorable condition of a female

prison inmate, but was subsequently expanded to deal with the termination of pregnancy of

female prison inmates in general. After taking into consideration the rules in the Maharashtra

Prisons Manual, the Court examined the provisions of the Medical Termination Act. With

respect to Explanation 2 being limited to contraceptive failure in case of married couples, the

High Court held that a couple who is living as a married couple should also be covered under

it. Unfortunately, however, the High Court provided no principled justification for this

expansive reading of the term married. Presumably, the justification lies in the requirement

that statutory texts should be interpreted in the light of the present social scenario. The

Courts laconic reading of married to include relationships in the nature of marriage,

despite its undeniably important practical implications, is something of a missed opportunity.

While examining the issue of pregnancy the court observed that there are social, financial and

other aspects of a womans life that have serious repercussions on her mental health.

Therefore, the medical practitioner should take into consideration these factors while forming

an official opinion.

The Courts focus on mental health and its observation that because of its social, financial

and other aspects, unwanted pregnancies affect womens mental health are important,

because under Section 3, the medical practitioner must make a good faith assessment about

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whether the pregnancy is harming the womans mental health. Taking this forward, the Court

then noted that: A womans choice to abort a child is not a frivolous decision but one that

usually has been taken by considering the prospects of providing the unborn child with a

good and healthy life and also the happiness of the family she is a part of. Many a times a

woman facing an unwanted pregnancy is unable to avoid it which is not just unfair to the

mother but also to the child. The court further added that the right to control their own body

and fertility and motherhood choices should be left to the women alone. The court laid stress

on the importance of not losing sight of the most important right of a woman which is the

basic right to autonomy over ones own body.

It went on to affirm that the right to reproductive choice was a facet of personal liberty

under Article 21 of the Constitution. These observations should have led to only one

conclusion that if the womans right to bodily integrity and decisional autonomy is

paramount, then, under Section 3, the medical practitioner should not, in good faith,

contradict the womans informed choice to terminate her pregnancy, or substitute his

judgment about what constitutes a threat to her mental health over hers. However, the court

shied away from taking this crucial step and just went back to the issue of the plight of the

women prisoners and passed directions to help them in terminating their pregnancies in

accordance with the MTP Act.

Consequently, the Courts treatment of Section 3 is in my view an even greater missed

opportunity than its reading of Explanation 2 where, at least, it returned a clear interpretive

finding. Once the Court had gone as far as to say that an unwanted pregnancy, ipso facto,

presented a substantial danger to a womans mental health because of its economic and social

consequences, it required but a small, further step to hold that, in the background of Article

21, Section 3s good faith requirement made the womans decision paramount. In the

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absence of a direct interpretive finding though, there is a risk that the judgment like many

other well-intentioned judicial efforts will remain mere rhetoric.

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 FORCED STERLIZATION

During the emergency of 1975, forced sterilization was given legal backing by many of the

states. For example, the Punjab government passed a law which made having more than two

kids an offence.13 This goes completely against the principle of individual autonomy over

reproduction.

Even after the emergency the trend in some states continued, as is evident by the resemblance

of their policies to those during the emergency. The population policies in some states

provide that financial assistance at the Panchayat level is contingent up on a district's

performance in achieving "family planning targets."14 Giving this kind of monetary incentives

will preclude an individual from making informed medical choices. In a country where over

one-fourth of the population is below the poverty line, disincentives tagged with basic human

needs such as food, do not remain mere disincentives. Inevitably, they take on a coercive

character. Reproductive autonomy is thus made to take a back seat by the governments

policies regarding reproduction and population control.

13 See Stephen Trombley, Exploring Sterilization, available at http:// www.hsph.harvard.edu,

(last visited August 20, 2005)

14 6 Mohan Rao, In Whose Interest?, THE HINDU,August 31, 2003, available at http://

www.hindu.com/thehindu/mag/2oo3/o8/31/stories/2003083100260400.htm (last visited

March 17, 2006). The Andhra Pradesh government has a policy of offering a monetary

reward of Rs. 10,000, a substantial sum for India's poor, to select couples drawn by lottery in

every district. For a couple to be eligible to participate in this lottery, at least one of the

spouses must have undergone sterilization. ld.

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 CRITICAL ANALYSIS

In a country like India where women are subjected to prejudices and discrimination at almost

every level and have social obligations weighing down almost every decision they make, it is

of utmost importance that steps be taken to liberate them in regards to the reproductive

choices they make which is the most basic right that can be ensured to them. The first step to

be taken towards this is education. The greatest problem that we face today is not the lack of

rights but people being unaware of their rights. Education of women will take them a lot

closer to being aware the rights that they have and also understanding what is the right

decision to be made for themselves and also their children and family. The second problem

that we face is that amenities are not being made available to women especially those living

in the rural and under developed parts of the country. Affordable medical help and

contraceptives should be made available at all levels and women attendants should be

available at these medical centres. The next step should be a change in the provisions of the

Medical Termination Act 1973 to explicitly include unmarried women in the explanation 2

recognizing the total and absolute right women should have over their body regardless of

their marital status. Also, the provision of 22 weeks should be reconsidered or exceptions

should be included for special cases where the will of the woman and the medical

complications should be considered side by side to come to a conclusion. The provisions of

any act should be interpreted keeping in view the constitutional rights guaranteed to the

person and therefore the right to life under article 21 should be upheld when deciding the fate

of a woman carrying a child and her unborn baby.

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