Navigating the course of reproductive rights- India and Worldwide

Abstract

My body, my choice is the basis on which fertility and reproductive rights depend. To say India has been an independent country for the past 75 years, but the traditions, social and cultural norms, still bind the hands of the country’s people. Abortion is often associated with dishonor and slur. Sociological concepts of patriarchy, the upper hand of elders of the family, sex-selection, and female feticide are involved in abortion. The desire for a male child/ son/ heir to the family often involves the killing of infant girls or female fetuses. Majorly, such abortions are decided on behalf of that woman by her husband, or any other relative.

In these cases, the woman has no autonomy and freedom over her own body. She is restricted in her own bodily rights that are present and guarded even in the Constitution of India. Her fertility and bodily rights get trapped either by means of other controlling her or laws refraining from permitting abortions. Abortions, surrogacies, and assisted reproductive technology practices are complicated as well as delicate. Anyone who misuses them, be it doctors, medical practitioners, or laymen, is punished under the law. Post 2021, the 3 crucial laws governing all these aspects are the Medical Termination of Pregnancy Act 2021[1], Assisted Reproductive Technology (Regulation) Act 2021[2], and the Surrogacy Act 2021[3]. They play an important role in granting women bodily autonomy and grant certain freedom under the framework of these laws and the constitution.

Introduction

Reproductive rights and the protection of these rights are an integral part of any system, country, or organization. “Access to safe and legal abortion is recognized as a key element of reproductive rights.” The word “abortion” is derived from the Latin word “aboriri,” which means “to miscarry” or “to be aborted.” Many times these rights have been granted to women, yet there remains a gap in the implementation of these rights. These rights often tend to conflict with patriarchal and feminist ideals. This begins to surface various sociological concepts and developments, hence relinquishing the main concept of reproductive rights. These rights play a crucial role in any woman’s life (whether single or married), thus affecting her decisions thereafter. Hence, the basis for reproductive rights has been protected by the Constitution of India. It can be seen in Art. 14[4], Art. 15[5], Art. 19[6], and Art. 21[7].

Interpretation of reproductive rights can be done in different ways. Where some people take into consideration the health and safety of pregnant women, and her safety, others may give preference to the unborn child, stating it has individual rights and liberties. (right to not be killed as is done in abortion). World Health Organisation has defined “Abortion” to be a standard surgery, employing a variety of physicians who can effectively treat abortion.

The concepts of reproductive rights were brought more into light and defined during colonial rule. Post independence, these rights were formally enacted under the Medical Termination of Pregnancy Act 1971.[8] Recently, in 2021, there were major amendments made to the previous act. Currently, the Medical Termination of Pregnancy Act 2021[9] intersects with the Assisted Reproductive Technology (Regulation) Act 2021[10] and the Surrogacy Act 2021[11]. All three of these acts were passed in 2021, hence defining the reproductive rights of women and their authority to make decisions.

This paper would primarily deal with the Medical Termination Act, 1971, its recent amendments, and its relation with the Assisted Reproductive Technology (Regulation) Act 2021 and the Surrogacy Act 2021. It would even involve global thoughts on reproductive rights, abortion rates, and laws worldwide. 

Understanding and analyzing reproductive rights

1. Navigating the convergence of statutes[12]

The significance of regulating Assisted Reproductive Technology (Regulation) Act 2021[13] & reproductive technologies was the matter of extensive discussions. Hence, prior to the enactment of the Assisted Reproductive Technology (Regulation) Act 2021, a number of law commissions and parliamentary reports had been passed. Some of the prominent reports that led to the passing of Assisted Reproductive Technology (Regulation) Act 2021[14] are:-

1. 228^th Law Commission Report- 2009[15]
2. Indian Council of Medical Research (ICMR) and Ministry of Health Draft ART Bills (2008, 2010, 2014, 2017)
3. National Guidelines by Indian Council of Medical Research (ICMR) – 2005

The lack of the Act has led to several malpractices, commercial exploitation of women, risks to the health and life of pregnant women & other ethical concerns.

A significant stage in India’s reproductive technology could be seen by the passing of the Assisted Reproductive Technology Act, 2021. It attempts to strike a balance between moral & ethical obligations & scientific growth. The Act was passed in the Lok Sabha on 1 December 2021, the Rajya Sabha on 8 December 2021 & finally received presidential assent on 18 December 2021. Assisted Reproductive Technology (ART) incorporates several medical practices such as in vitro fertilization (IVF), intrauterine insemination (IUI), egg/sperm donation, embryo transfer, and other associated methods that aid in becoming pregnant & help those who suffer from these issues. Few of the key provisions of the Act include mandatory registration, written informed consent from patients & donors with counselling provided, eligibility (same-sex couples or foreigners not eligible), limits on the number of times a person can donate eggs/sperm, and sex-selection is completely prohibited. It even includes punishment, imprisonment (5–10 years), and fines (₹5–10 lakhs). It has led to the establishment of the National ART and Surrogacy Board and State Boards for monitoring and implementation of the Act. The implementation of the Act has led to resolving the challenges & ethical dilemmas that were faced by women, couples, or any other individuals prior to its establishment.

Alongside the Assisted Reproductive Technology (Regulation) Act 2021[16], another significant act, namely the Surrogacy Act, 2021[17], was implemented. These two acts go hand-in-hand, creating important absolute rules regarding pregnancy, eligibility as to who can avail under the act, and also be a donor under these Acts.

A few landmark cases that highlighted the need for the Surrogacy Regulation Act, 2021 are:- Baby Manji Yamada vs Union of India (2008)[18] and Jan Balaz vs Anand Municipality[19]. In these judgments, there was seen lack of proper legislation for analysing the issues put forth in the case. Hence, the cases were decided with the prevailing laws and necessary channels. This act came into force on 25 January 2021 and was implemented by the Ministry of Health and Family Welfare. The Act provides only for altruistic surrogacy, hence completely prohibiting commercial surrogacy. It has further eligibility for being a surrogate mother and an intending couple. It has even established the National Assisted Reproductive Technology and Surrogacy Board and State Boards. Most of the information related to this is provided in Section 4 of the Surrogacy Regulation Act, 2021[20]. It has provided for a separate chapter of offences and penalties if found guilty of any offence under the Act. Both the discussed acts even link up with the Medical Termination of Pregnancy Act, which has now been amended in 2021.

In India, the broad spectrum of reproductive healthcare issues and services is governed by the three acts, namely: Assisted Reproductive Technology (Regulation) Act 2021[21]; Surrogacy Act, 2021[22]; Medical Termination of Pregnancy Act, 2021[23]. Medical Termination of Pregnancy Act, 2021[24] deals with termination of unplanned or catastrophic pregnancies; Assisted Reproductive Technology (Regulation) Act & Surrogacy Act tackle medically supported assisted reproductive techniques such as in vitro fertilization (IVF), intrauterine insemination (IUI), egg/sperm donation, embryo transfer, etc. which help in becoming pregnant and enjoying the happiness of parenthood. Offences such as sex selection and female feticide are prevalent in all these Acts, with necessary punishments provided for the same. There are certain provisions that can be seen in all 3 acts, such as eligibility, offences & penalties, confidentiality, registration of institutions that practice ART or other things, and most importantly, protecting women from being exploited in any case.

2. Unfolding the Medical Termination of Pregnancy Act- 1971 and 2021[25]

Prior to 1971, Abortion was penalized under S.312 IPC [26](voluntarily causing miscarriage of women). Abortion is far more than a medical practice. It is a deep-rooted social and psychological issue shaped by gendered roles, cultural values, and traditions. It is a complex topic in India as it touches the delicate issues of patriarchy, sex selection, gender roles, and even societal stigma and intersectionality. It was a topic of hot debate and discussions where such women who were victims of rape and incest had to go through ample court judicial process to get their pregnancy aborted. The period of the 1960s experienced high mortality rates owing to dangerous and illegal abortions. Due to all such instances, the Shantilal Shah Committee was constituted under the chairmanship of Dr. Shantilal Shah in 1964. One of the key recommendations of the committee was to permit legalized abortions in India to facilitate the reproductive rights of women in rural and urban India. In this manner, the Medical Termination of Pregnancy Act, 1971[27], came into force in April 1971. A significant impact for the enactment of this act came from the UK’s Abortion Act, 1967. India was one of the first countries to legalize abortions while even abiding by the international standards and observing abortion laws in other countries (USSR, UK, Sweden).

The constitution provides certain fundamental rights that, in return, protect the reproductive rights of women in India. A few prominent ones are Art. 14 [28](Right to Equality),  Art. 15 [29] (Prohibition of Discrimination), Art. 19 [30](Right to Freedom), and Art. 21[31](Right to Life and Personal liberty).

In the case of Suchita Srivastava v. Chandigarh Administration (2009)[32]– where mentally challenged woman was raped and became pregnant in government agency. The governing body and officials intended to terminate her pregnancy, whereas the lady didn’t want to terminate it. The Supreme Court held that Art.21[33], being a fundamental right, even encompasses the right of a woman to make her reproductive and bodily decisions. In this way, Art.21[34] influenced the MTP Act, 1971 as well by stating the reproductive choice of a woman to be held in the highest regard.

In the case of High Court on its Own Motion v. State of Maharashtra (2018)[35], it was decided by the Bombay High Court that compelling a woman to undergo any pregnancy against her desires infringes her individual rights and bodily autonomy, even impacting her mental health in an adverse manner

In the case of Dr. Nikhil D. Dattar & Ors. v. Union of India (2009)[36], the fetus of the petitioner was identified with congenital complete heart block in the 24th week of the pregnancy. The gynaecologists advised her to have an abortion. Hence, the MTP Act, 2021 failed to allow for an abortion post-completion of 24 weeks. Hence, she was compelled to proceed to the Bombay High Court. Ultimately, the court rejected her petition, and she had to continue her pregnancy.

In the late 2000s, there was a need for major amendments to be made to the MTP Act, 1971[37]. There are certain law commission reports and international guidelines revolving around the matter. It has been stated in the 228^th Law Commission Report (2009)[38], Draft MTP (Amendment) Bill, 2014 (by the Ministry of Health and Family Welfare), and World Health Organisation (WHO) reports. Since 2016, there has been an increasing trend of women who appealed to the Supreme Court and High Court requesting their pregnancies to be terminated, which at times exceeded 20 weeks. The Ministry of Health & Family Welfare proposed modifications in 2020. In March 2021, the Medical Termination of Pregnancy (Amendment) Bill was passed by both Houses of Parliament and further received the President’s assent on 25 March 2021

Some of the prominent changes in both the acts are as follows:-

Points	Medical Termination of Pregnancy Act, 1971[39]	Medical Termination of Pregnancy Act, 2021[40]
Limit for gestation	Up to 20 weeks	Up to 20 weeks (1 registered medical practitioner’s opinion)
Limit for gestation (Special categories)	Up to 20 weeks	Up to 24 weeks (cases of rape, minors, lunatics, etc.)
Fetal abnormalities	Up to 20 weeks	No upper limit
Pregnancy due to contraceptive failure ground	For married women	Includes unmarried women as well
Confidentiality	Not legally enforceable	Protection of the privacy of women as per S.5 (A)
Medical Board	Not constituted	Constituted under S. 2(D), the Medical Board shall consist of the following, namely: (a) a Gynaecologist; (b) a Paediatrician; (c) a Radiologist or Sonologist; and (d) such other number of members as may be notified in the Official Gazette by the State Government or Union territory, as the case may be.
Mental Incapacity	‘Lunatic’ was used under the Indian Lunacy Act, 1912	‘Lunatic’ was replaced with ‘mentally ill person’

 

Fertility rights of women in certain groups:-

1. Unmarried women

They are now safeguarded under the 2021 Amendment Act and were previously overlooked owing to ‘contraceptive failure’.

2. Rape/ Incest Victims

Pregnancies caused under such grounds are permitted for abortions owing to the mental trauma undergone by the victims of such an act. In the case of Surjibhai Badaji Kalasva v. State of Gujarat (2018)[41] a 13 yr old girl became pregnant as a result of rape. Her father filed a writ petition under Art.226 [42]and registered an FIR under S.376 IPC[43] and Protection of Children from Sexual Offences Act, 2012. Since the fetus was already 30 weeks, proceeding with an abortion posed great danger to both the child and the mother. Gujarat HC disapproved of abortion since it could even lead to premature birth. The court directed the child to be born where, if the family denies taking responsibility, it would be fully taken by the State.

1. Disabled women
2. Financially disadvantaged women
3. LGBTQ+

In the case of X Vs. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi and Ors (2022) [44] a 25-year-old unmarried girl who was residing in Delhi in a consensual relationship with her partner and originally hailed from Manipur, became pregnant. After discovering her pregnancy, her partner hesitated to marry her. When she was less than 24 weeks pregnant, she appealed in the Delhi HC requesting an abortion. It was related to financial stress, social stigma, among others. However, the court rejected her plea on the ground that the Medical Termination of Pregnancy Act, 2021, permitted abortions only among married women up to 24 weeks and not unmarried women. Then she further appealed to the Supreme Court. The Supreme Court permitted her to get an abortion, further saying that the Delhi HC interpreted it in a very narrow manner. It also invoked the principle of ‘purposive interpretation’, thereby broadening the definition the Medical Termination of Pregnancy Act, 2021. It even applied and used fundamental rights provided under the Constitution.

In the case of X vs Union of India (2023)[45], the petitioner was a married woman, 27 years old, who was the mother of 2 children. Due to lactational amenorrhea, she unexpectedly became pregnant and realized it at about 26 weeks. She was denied abortion at a hospital, owing to which she had to approach the Supreme Court requesting to terminate her pregnancy. Under the Medical Termination of Pregnancy Act, 2021[46], most women can have their abortions up to 20 weeks and between 20 and 24 weeks if they fall under S.3 (2B) [47]special categories of women. The Supreme Court denied her abortion as she did not fall under any of the special categories, and her claims of being mentally ill were overlooked. She stated that she was going through emotional distress and depression. In this case, SC turned a blind eye to the fertility rights and fundamental rights of that woman. Although it can be said that she could not provide any concrete evidence, she was a mother of two, unaware and unprepared for this pregnancy, which shows that at some point she was denied her right to abort. This child has been forced upon her by the laws of the country. It even puts light that mental trauma or depression cannot be a sufficiently good reason to permit an abortion post 24 weeks.

While treading a step forward in 2022, optimism hovered only to be darkened in 2023, where understanding gave way to conservatism. This can be clearly seen that after going a few steps ahead, giving women their bodily and reproductive autonomy, sanctions were imposed upon this in the 2023 case. The decision became narrow-minded a year later, when a year before it permitted the inclusion of unmarried women under the Right to Equality (Art.14)[48].

In the case of Justice K.S. Puttaswamy (Retd.) vs. the Union of India (2017) [49]– under Art. 21[50], the Supreme Court upheld a woman’s reproductive and fertility autonomy, thereby declaring the right to make reproductive choices under Right to Life and Personal Liberty.

3. Comparative study of abortion rates [51]

In this, there would be a quick analysis done regarding the abortion rates in various countries. At some places, the rigidity of abortion laws can also be observed owing to traditions and socio-cultural practices in various countries.

1. United Kingdom:- One of the countries broad-minded and unprejudiced with respect to abortion laws. Here, abortion is permitted up to 24 weeks, even for mental trauma. On that ground, around 98% of the abortions are carried out. The legislation governing abortion and reproductive rights is the Abortion Act 1967[52], which has been amended by the Human Fertilization and Embryology Act 1990[53]
2. United States of America (USA):- Abortion laws gained their foothold in the USA after the landmark judgment of Roe vs Wade (1973)[54]. Before that, abortion was criminalized in most states in the USA. The judgment of Roe vs Wade (1973)[55] was upheld in Planned Parenthood Vs Casey (1992)[56]. Major reasons for abortion are:- unprepared for child, economic and financial reasons, result from rape/ incest, fetal health problems, physical/ mental issues.
3. Ireland:- Abortion laws have been too constraining, partially owing to the deeply rooted Catholic values. But due to the appalling death of Savita Halappanavar (2012), there was public fury and outcry. This led to the enactment of the Health (Regulation of Termination of Pregnancy) Act, 2018[57], where abortion is sanctioned up to 12 weeks on request. Most frequent causes are unplanned pregnancy, rape/ incest, fetel abnormalities, etc.
4. South Korea:- Till 2021, abortion was criminalized and strictly penalized under its 1953 Criminal Code. Under the Mother and Child Health Act, 1973[58], abortion was permitted in cases of fetal abnormalities and exceptional circumstances. This act has been amended several times with its major amendments taking place in 1986 and 2015. Since 2021, abortion has been decriminalized, and abortion is permitted from 14 weeks up to 24 weeks (under special conditions). Most reasons include non-commitment towards marriage, social stigma, and economic problems.

Suggestions

In this paper, several aspects of reproductive rights and bodily autonomy have been discussed. While observing the recent judgments on abortion, it is said that steps taken forward have been reversed by the denial of granting abortion. In one case, it was seen that the court went as far as to amend the abortion rules and mention inclusivity, and in the other one, the same process was denied. So this was even done to protect the rights and liberties of the unborn child. At some point or other, the rights of this child should also be taken into consideration. Whilst comparing laws in India on abortion on a global platform, India can be said to have a progressive mindset. At the time when abortion laws were implemented for the first time under the Medical Termination of Pregnancy Act, 1971[59], most of the countries had penalized it as an offence under their respective countries’ laws. Today, there can be World Health Organization (WHO) guidelines and United Nations Population Fund (UNFPA) resolutions that are passed on abortion and reproductive rights. In fact, even today, many countries have imposed a total ban on abortion and do not permit it in most crucial situations. Some of them who have imposed a complete ban on abortions are:- El Salvador, Honduras, Nicaragua, Dominican Republic, Haiti, Suriname, Jamaica, Madagascar, Mauritania, Senegal, Sierra Leone, Republic of Congo, Laos, Palau, Andorra, Aruba, Curaçao, San Marino, Malta, Philippines, Togo/Tonga. When pregnancies arise from cases of rape/ incest abortion is not allowed even in these harsh circumstances.

When India is compared to these situations or others who provide for abortions, it has implemented its first act on decriminalizing abortions and making it legal long back in 1971. With the advent of technology and stepping up into new generations, India has made reforms in its old laws, adhering to various judgements, law commission reports in 2021. It can be visibly observed that laws prevalent in India are far more progressive, be it in fragile situations or hardened crimes

Conclusion

While concluding this paper, it is important to understand that these laws cannot act as shackles that entangle the female body and her reproductive rights. The laws provided are just to aid females and girls to have an abortion. It is crucial to understand that abortions cannot be done at one’s pleasure and should be refrained from in case of a girl child. As abortions are necessary, equally, they are hazardous to the female body. They may even hamper that woman’s future fertility chances and act as a barrier to getting pregnant.

Although it’s said that laws cannot bind the abortion rights of an individual, it should even be taken into consideration that unnecessary abortions should be avoided. This is because the unborn child should be taken into consideration before doing an unnecessary abortion, where the woman can carry and raise the child in a comfortable environment.

So, abortion has its own pros and cons. Abortion is legalized and protected in India. This legalization should be put to use judiciously and should not be implemented in an imprudent manner. 

References

[1]  Medical Termination of Pregnancy Act, 2021, No.8, Acts of Parliament (India).

[2]  Assisted Reproductive Technology (Regulation) Act, 2021, No. 42, Acts of Parliament (India).

[3]  Surrogacy Act, 2021, No.47, Acts of Parliament (India).

[4]  INDIA CONST. art.14.

[5]  INDIA CONST. art.15.

[6]  INDIA CONST. art.19.

[7]  INDIA CONST. art.21.

[8]  Medical Termination of Pregnancy Act,1971, No.34, Acts of Parliament (India).

[9]   Supra Note 1

[10]  Supra Note 2

[11]  Supra Note 3

[12]  Esha Jain, The Constitutional aspects of reproductive rights and technologies in India, Vol 6, Issue 3, IJLSI, 451-468, 2024.

[13]  SuprA Note 2

[14]  Supra Note 2

[15]  Law Commission of India, Report No. 228,Need for Legislation to Regulate Assisted Reproductive Technology Clinics as Well as Rights and Obligations of Parties to a Surrogacy (2009).

[16]  Supra Note 2.

[17]  Supra Note 3.

[18]  Baby Manji Yamada v. Union of India, (2008) 13 SCC 518.

[19]  Jan Balaz v. Anand Municipality, 2009 SCC OnLine Guj 10446.

[20] Surrogacy Act, 2021, § 4, No.47, Acts of Parliament (India).

[21]  Supra note 2

[22]  Supra note 3

[23]  Supra note 1

[24]  Supra note 1

[25]  Akansha Bhatia, Analysis of reproductive rights of women in India, Jus Corpus Law Journal (JCLJ), 2022.

[26]  indian Penal Code Act, 1860, § 312, No.45, Acts of Parliament (India).

[27]  Supra note 8

[28]  Supra note 4.

[29]  Supra note 5.

[30]  Supra note 6.

[31]  Supra note 7.

[32]  Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1.

[33]  Supra note 7.

[34]  Id.

[35]  High Court on its Own Motion v. State of Maharashtra, 2017 Cri LJ 218.

[36]  SLP (C) 5334 of 2009.

[37]  Supra note 8.

[38] Supra note 14.

[39]  Supra note 8.

[40]  Supra note 1.

[41]  Surjibhai Badaji Kalasva v. State of Gujarat, 2018 SCC OnLine Guj 190.

[42] INDIA CONST. art.226.

[43] indian Penal Code Act, 1860, § 376, No.45, Acts of Parliament (India).

[44]  X2 v. State (NCT of Delhi), (2023) 9 SCC 433.

[45]  X v Union of India, 2023 SCC OnLine SC 1338.

[46]  Supra Note 1.

[47] Medical Termination of Pregnancy Act, 2021, § 3, cl.2(b), No.47, Acts of Parliament (India).

[48]  Supra Note 4.

[49]  K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1.

[50]  Supra Note 7.

[51]  Bhoomika G. Kuruvatti, A Feminist Perspective on Abortion Laws: A Comparative Analysis with Special Reference to India, the United States of America, South Korea and Ireland, 4 INDIAN J.L. & LEGAL RSCH. 1 (2022).

[52]  Abortion Act, 1967 c. 87.

[53] Human Fertilization and Embryology Act 1990 c.37.

[54]  Roe v. Wade, 410 U.S. 113 (1973)

[55]  Id.

[56]  Planned Parenthood v. Casey is 505 U.S. 833 (1992).

[57]  Health (Regulation of Termination of Pregnancy) Act, 2018, No.31, Acts of Parliament (Ireland).

[58]  Mother and Child Health Act, 1973, No.2576, Acts of Parliament (South Korea).

[59] Supra note 8.