The State in the Womb: Law, Morality and State Control over Women

INTRODUCTION

Women’s rights include the right to equality, dignity, integrity and autonomy. Their private life should be protected and respected, and they should attain the highest standard of health. They should not be subjected to degrading or inhumane treatment.

It is the very core right of every woman and girl to make decisions about her own body and reproductive functions. Equality in reproductive health includes access, without discrimination, to quality and affordable contraception for all.

Historically, women’s reproductive and sexual autonomy was treated as a matter of state interest. A premier substantive criminal statute, such as the Indian Penal Code (IPC), 1860, criminalizes “voluntary miscarriage” under sections (312-316), except under some exceptions, treating women merely as a means for procreation, mainly to carry on the family name and property.

The Medical Termination of Pregnancy (Amendment) Act, 2021, exhibits notable gaps, such as the medical board delays beyond 24 weeks, inequity in access to women in rural or remote areas, exclusion of rape victims, creation of ambiguity for single women, even though the act implicitly mentions “unmarried women, and unnecessary third-party intervention, which reflects state paternalism, overriding their individual autonomy and restricting their choices or actions against their will. This depicts that women’s bodies are regulated under the guise of welfare and morality.

RELEVANCE IN A CONSTITUTIONAL DEMOCRACY- LAW, MORALITY AND AUTONOMY

In a constitutional democracy, it is the utmost responsibility of the government to protect individual rights and respect human dignity. Articles 14, 15, and 21, together, form the triad that is relevant as the core component of the fundamental rights, ensuring equality, prohibiting discrimination, and guaranteeing the Right to life and personal liberty, ensuring that state actions are not arbitrary, discriminatory and restrictive of human dignity.

Yet the continuous regulation of the state over abortion, contraception, and sexual conduct draws attention towards the pendency of gender justice. The Supreme Court reaffirmed in X v. Principal Secretary, Health and Family Welfare Department, Govt. NCT of Delhi (2022)[1],  the right to reproductive choice is a basic part of Article 21, and women, despite of their marital status, have the right to equal access to reproductive healthcare.

Article 21 ensures the right to life and personal liberty, which has been interpreted by the Hon’ble Supreme Court to include privacy, making reproductive choice, as an element of bodily autonomy and dignity in Justice K.S Puttaswamy v. UOI (2017)[2].

Similarly, in Suchita Srivastava v. Chandigarh Administration (2009)[3], the Supreme Court held that reproductive choice is an integral part of personal liberty under Article 21.

In Meera Santosh Pal v. UOI (2017)[4], the Supreme Court allowed a woman to terminate a 24-week pregnancy, highlighting women’s right to bodily autonomy and the right to take steps necessary to preserve her own life.

However, these dynamics often collide with social morality, Section 377 of the Indian Penal Code, 1860, before being partially struck down in Navtej Singh Johar v. UOI, and completely removed after the implementation of Bhartiya Nyaya Sanhita, which criminalised marital rape (unnatural offences). It showcases the interplay between morality and legal developments. In the Sabarimala Judgement, [5]revealed how morality can come in conflict with equality under Articles 14,15 and 25(1).

THEORIES OF FEMINISM – LIBERAL V. RADICAL

Feminism views bodily autonomy on the principle that every person has the absolute right to control their own body, free from violence, coercion, or the interference of the state. Slogans like “My Body My Choice” emphasise that consent and decision-making are the core, which also challenges patriarchal control over women’s bodies. Women should be protected against domestic violence, sexual harassment and forced sterilisation. Feminist activism also showcased that when people are denied control over their own bodies, they are effectively denied from participating equally in society.

Liberal feminism promotes bodily autonomy by emphasizing a woman’s right over her own body, health, including reproductive health, without any government or patriarchal intervention. It also ensures that women have access to contraception and safe abortion, which are the cornerstones for ensuring their own control over their health and future. It also advocates for freedom of choice and equality of opportunity.

Whereas radical feminists argue that law itself is a patriarchal structure that reflects and enforces male norms. They see women’s oppression by the patriarchal system as a direct outcome of their reproductive capacity and autonomy. Women used to be forced by the patriarchal norms to give birth and become mothers to prove their worth as “real” women. Radical feminists provide them the capacity to choose their own lives, free from oppression and state control.

GENDER, ALTERITY, AND HUMAN RIGHTS: RATNA KAPUR & JUDITH BUTLER

Ratna Kapur, a feminist scholar, has focused on gender equality and sexual rights by putting major focus on the judgments made by the Indian Supreme Court and High Courts, where the courts recognised the right to sexual autonomy, free from sexual violence, decriminalizing adultery and cruelty over women and expanded women’s reproductive rights. Yet, women are still recognised as vulnerable subjects rather than autonomous agents. She showcased that the state, including the judiciary, plays a vital role in shaping the meaning of equality for women and the dominant political and religious ideologies affecting them. The state also reads equality differently among religions; the choices of Hindu women are more readily respected, whereas Muslim women are subjected to paternalism, suspicion and surveillance.

She supports the strong and evolving constitutional framework, but warns that these rights become conditional, selective, and are politically instrumentalised without actually being transformative.

On the other hand, Judith Butler argues that women were always treated as a “reproductive resource”, through her famous books such as Gender Trouble, Bodies That Matter, etc., she showcased how the state has a major role in controlling and regulating reproduction and how they control women’s bodies in the name of reproduction. She also argued that bodily integrity should be accepted as a political good.

LEGAL REFORMS, GAPS & CRITIQUES

• Marital Rape

The most problematic legislative gap that concerns bodily autonomy is Exception 2 of Section 375 of the Indian Penal Code (IPC), which excludes marital rape from the definition of rape. This section was rooted in the colonial-era and therefore, it was assumed that implied consent exists within marriage; this denied married women the right to sexual autonomy. It legitimized sexual violence within marriage if the wife is over 15 years of age. This particular provision also excluded male and transgender victims from protection.

The Supreme Court in Independent Thought v. UOI (2017)[6] held that sexual intercourse with a wife below 18 amounts to punishment under the provision of ‘rape’, which was earlier regarded as constitutional.

Whereas, in X v. Principal Secretary (2022)[7], the Hon’ble Supreme Court affirmed that marital rape should be included in the definition of ‘rape’ for the Medical Termination of Pregnancy Act (MTP).  

In the judgment of Hrishikesh Sahoo v. State of Kerala (2022)[8], the Kerala High Court held that the exception of marital rape violated Article 14 (right to equality) and is regressive; marriage is not a license for sexual violence.

• Surrogacy (Regulation) Act, 2021

Surrogacy Bill 2021 was introduced to prevent exploitation in commercial surrogacy and to regulate altruistic surrogacy in India. It provides an ethical framework for ethical surrogacy, protects surrogate mothers, and ensures the rights of the children born through surrogacy.

This act also prevented the exploitation of poor women, trafficking and protected their rights. Earlier, many women were prone to health risks, coercion, and abandonment. Poor, marginalised women were exploited by foreign clients, clinics and intermediaries due to high demand and low-cost conditions. Lack of legal protections often made it vulnerable. India was labelled as ‘Baby Factory’ as it became one of the top destinations for surrogacy. Later in Suchita Srivastava[9] case, the Supreme Court explicitly recognised a woman’s right to make reproductive choices as part of personal liberty under Article 21 of the Indian Constitution.

Women’s body was treated as a commodity; this bill curbs these issues by limiting their reproductive choices, which is a part of Article 21, but this act narrows the scope of its application to surrogacy.

• Medical Termination of Pregnancy (Amendment) Act, 2021

This 2021 act strengthens women’s bodily autonomy in India by expanding abortion access, increasing the limit of legal gestation from 20 to 24 weeks for minors, rape survivors, and vulnerable women. Earlier, women’s bodily autonomy was restricted, no option for the right to choose, and it affected unmarried women and lacked confidentiality. This act mandates privacy and confidentiality and reduces medical opinion requirements.

It allowed both single and married women the right to abort while seeking safe abortion services, as held in X v. Principal Secretary Health (2022)[10],  the Supreme Court held that regardless of marital status, all women are entitled to safe abortion. A similar judgment was passed by the court in 2024, Mrs C v. The Principal Secretary Health[11], that women experiencing a change in the marital status, such as abandonment, would fall under the category of women eligible for termination of pregnancy between 20 to 24 weeks.

This act was regarded as a major step towards women’s reproductive autonomy.

• Criminal Laws

Criminal laws in India are a complex blend of colonial-era provisions, protective measures, and judicial advancements.

Section 375 (earlier IPC) is now BNS Section 63, which contains an exception, i.e., “Sexual intercourse or sexual acts by a man with his own wife, not being under 18 years of age, is not rape”- held in Independent Thought v. UOI (2017).[12]  It has a major impact as a wife’s body is legally treated as the property of her husband, infringing her rights, dignity and bodily integrity.

The Supreme Court and various High Courts view it as regressive, and victims seek remedies under the Protection of Women from Domestic Violence Act (PWDVA), 2005. This depicts how women’s bodily autonomy is restricted by law.

In the Puttaswamy[13] judgement, the Supreme Court recognized right to privacy as a fundamental right under Article 21, which also includes bodily autonomy and the right to make intimate decisions.

COMPARATIVE PERSPECTIVES ON BODILY AUTONOMY

The global imbalance is when basic bodily and reproductive rights start to worsen in countries around the globe, for example United States, Poland, and Nicaragua, abortion has become restricted or totally illegal in these countries.

According to the Centre of Reproductive Rights, around 50 countries have liberalised their abortion laws in the past decades. Moreover, the use of modern contraception has doubled. When surveyed globally, around 55% women were fully empowered to make decisions about their own bodies. only 75% countries guarantee legal and safe contraceptives. But it still has some loopholes; in some regions, amount 90% of women cannot make their own healthcare decisions (regional disparity), and women are constrained by social and religious norms with limited economic opportunities.

• Norway, Denmark, and Sweden are recognized as global leaders in gender equality, along with strong policy frameworks to support it.
• The Green Wave movement in Argentina has led to progress in reproductive rights of women and the decriminalisation of abortion.
• South Africa’s post-apartheid constitution has one of the most progressive legal frameworks for the bodily autonomy of women. Section 12(2)(a) includes the right to make decisions concerning reproduction. The Choice on Termination of Pregnancy Act (CTOPA) of 1996 recognised abortion as a legal and constitutionally underpinned right.
• Ireland has experienced a rapid shift in terms of laws on the bodily autonomy of women, the repeal of the Eighth Amendment, which led to the Health (Regulation of Termination of Pregnancy) Act 2018, which provides termination beyond 12 weeks under conditions if there is a risk to women’s life and up to 12 weeks on request.

USE OF TECHNOLOGY, ROLE OF SOCIETY AND PUBLIC POLICIES

The technological innovation in reproductive health presents a duality, offering empowerment as well as fostering new forms of digital patriarchy. Many platforms collect data and rely on algorithms that reinforce traditional ideals of motherhood and gender roles. In India, initiatives like Ayushman Bharat Digital Mission aim to enhance medical efficiency but may also consolidate sensitive and private information without protections. This initiative can be seen as a form of reproductive control over women influenced by the state.

The Mother and Child Tracking System (MCTS) and the Reproductive and Child Health (RCH) portals collect information like the health data of women. Digital health technologies like Electronic Health Records and reproductive health apps have been approved to be really beneficial, but also created privacy risks by collecting sensitive personal data with consent. The Digital Personal Data Protection Act (DPDPA), 2023, failed to categorise reproductive health data as sensitive.

Policies-

• Public education campaigns on digital privacy, especially in marginalised and backward areas.
• Prior consent before collecting personal and sensitive data.
• Classification of reproductive data as sensitive, and high protection under data protection laws.

CONCLUSION

The Indian jurisprudence reflects evolution and a shift from colonial-era rules and policies, and the expansion of the rights of individuals related to bodily autonomy and reproductive rights. The judicial interpretations and judgments are shaped and evolved by social, cultural and religious norms. Courts have constantly acknowledged decisions related to body, sexuality and reproduction in various judgments. This autonomy, however, remains partial and conditional; choices of women are still evaluated through social, cultural, religious and sometimes patriarchal norms in the society. For a more progressive future for women’s autonomy, the requirement of legal frameworks and judicial decisions is of utmost importance, along with the implementation of legal rules and laws and broader social change, women would get equal legal recognition. Lastly, consistent application and accountability of laws would amount to cancelling the entrenched social and cultural hierarchies in the society; hence, social transformation and understanding of equality should be present.

REFERENCES

[1] X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT Delhi (2022 SCC OnLine SC 1321).

[2] Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors., (2017) 10 SCC 1 (India).

[3] Suchita Srivastava & Anr. v. Chandigarh Administration, (2009) 9 SCC 1, (2009) 14 SCR 989 (India).

[4] Meera Santosh Pal & Ors. v. Union of India & Ors., (2017) 3 SCC 462 (India).

[5] Indian Young Lawyers Association & Ors. v. State of Kerala & Ors., (2019) 11 SCC 1 (India).

[6] Independent Thought v. Union of India, (2017) 10 S.C.C. 800 (India).

[7] X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT Delhi (2022 SCC OnLine SC 1321).

[8] Hrishikesh Sahoo v. State of Karnataka, SLP (Cr.) Nos. 4063–4064/2022 (India).

[9] Suchita Srivastava & Anr. v. Chandigarh Administration, (2009) 9 SCC 1, (2009) 14 SCR 989 (India).

[10] X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT Delhi (2022 SCC OnLine SC 1321).

[11] Mrs C v. The Principal Secretary, Health & Family Welfare Department, Government of NCT of Delhi & Ors., W.P.(C) No. 11206/2024 (Del. H.C.) (Aug. 16, 2024).

[12] Independent Thought v. Union of India, (2017) 10 S.C.C. 800 (India).

[13] K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1 (India).