REPRODUCTIVE RIGHTS IN INDIA

ABSTRACT

Every person must have certain basic rights to live with dignity and one of those rights include reproductive rights by providing proper healthcare system. Reproductive right is a dimension of liberty under article 21 of The Constitution of India and thus every person must have access to proper health care system regardless of their social status in the society. This article is an attempt to discuss the reproductive rights in India, it explores the existing legislations, relevant judgements and the contemporary challenges.

Keywords: Reproductive health, healthcare system, maternal healthcare, reproductive choices, reproductive rights, safe abortion.

INTRODUCTION

‘Reproductive rights are human rights and thus no person should be devoid of such rights’

Post-independence, India was left with many challenges and after coping up with the basic necessities, a need was felt to take initiatives in addressing the issue of population control. The fear of mushrooming population in India resulted in several programs and policies. One such initiative was the enactment of the Medical Termination of Pregnancy Act, 1971 (hereinafter called as the MTP Act). The introduction of the MTP Act was focussed to achieve population control by providing access to safe abortions.  Thereafter, many developments have taken place through judgements and legislations which will be discussed in this article.

WHAT ARE REPRODUCTIVE RIGHTS?

 The World Health Organization (WHO) defines reproductive health as ‘the state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes.’^[1]

There are a wide variety of reproductive rights which include the following:

1. Right to abortion
2. Right to use safe birth control measures
3. Right to have reproductive health care facilities
4. Right to family planning, that is free and informed reproductive choice
5. Right to have education aboutsexually transmitted infections and other aspects of sexuality, right to menstrual health^[2]
6. Right to be free from all forms of coercion

EVOLUTION OF REPRODUCTIVE RIGHTS IN INDIA

Historically, the idea of bodily autonomy rarely existed as the society was governed by deep rooted religious and socio cultural practices. The concepts of birth giving and motherhood were considered sacred for the purpose of taking forward the lineage of a family and for this women had to go through a lot mentally and physically.

Since a male child is believed to carry forward the lineage, the women had to go through multiple pregnancies, resulting into major health issues and deaths in some cases. Infanticide, female foeticide and unsafe abortions led to many deaths. So, there was no legal framework to protect the healthcare rights of women. Thus, Medical Termination of Pregnancy Act, 1971 was introduced to protect the lives of women.

For the first time in 1994, a conference took place, that is, International Conference on Population and Development (lCPD) in Cairo which intended to focus on the women’s reproductive rights. India was a signatory to the Programme of Action (PoA) adopted in 1994 but still it took years to actually provide reproductive autonomy to women.

It was in 2009 when the Supreme Court stated that a woman’s right to make reproductive choices is a dimension of liberty under Article 21 of The Constitution of India. And after that the Apex Court had expanded and evolved the concept of reproductive rights and autonomy through different interpretations in their judgement. 

SIGNIFICANT LEGISLATIONS RELATED TOREPRODUCTIVE RIGHTS IN INDIA

In 1860, the Indian Penal Code was enacted to protect the Indian society from various offences. It also included protection of women from illegal miscarriage under S.312 (now S.88 Bharatiya Nyaya Sanhita) which made causing miscarriage a punishable offence unless done in good faith.

Post-independence, many welfare programmes were also introduced for family planning with the intention of controlling population which led to forced sterilization especially of underprivileged women again jeopardising women’s reproductive health.

Thereafter, MTP Act, 1971 was introduced which was a major step towards ending the agony of women, that is to reduce maternal mortality and introducing safe ways of terminating a pregnancy. The purpose of the MTP Act, 1971 aimed at the termination of certain pregnancies by registered medical practitioners. The MTP Act, 1971 has an overriding effect on S.312 of the Indian Penal Code, 1860 that is, S.3 of the MTP Act, 1971 provides that there will be no liability of the medical practitioners if the procedure is carried out within the MTP Act.

The main provisions of the MTP Act, 1971 includes the following:

• As per s.3 of the Act, opinion of one registered medical practitioner is required for abortions up to 12 weeks, and opinion of two doctors is required for abortions between 12 and 20 weeks.^[3]
• Abortions are not permitted beyond the period of 20 weeks of pregnancy however it was only allowed in some rare cases that is if there is a risk to the life or health of the woman or if the pregnancy is a result of rape or contraceptive failure in married women.^[4]

The MTP Act was somewhere a sigh for women as they had a little autonomy with respect to healthcare but still there was a long mile to go for achieving true bodily autonomy and proper healthcare.

As there were rising cases of female foeticide and reduction in the sex ratio, a need was felt to control the sex selective abortions and thus a new legislation was introduced. The Pre-Natal Diagnostic Techniques (PNDT), 1994 which was amended in 2003 that is Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 2003 (hereinafter called as PC and PNDT Act) to broaden its horizon by including pre-conception sex selection and making punishments more stringent. It was enacted with the main purpose of preventing the misuse of technology to determine the sex of the unborn.  The PC and PNDT Act aimed at prohibiting the sex selection, before or after conception, and for regulation of prenatal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide; and, for matters connected therewith or incidental thereto.^[5] The act to some extent contributed in controlling the female foeticide cases and improving sex ratio, still there is a need of full-fledged awareness and effectiveness towards the goal of uniformity in sex ratio across the nation. For effective implementation of the policies the state must take initiatives to spread awareness.

In 2021, the Parliament of India amended the MTP Act 1971 with the idea of making abortion more safe to all women be it married or unmarried and accessible to the vulnerable class of women by expanding the gestational limits. Now, the women will be allowed to terminate the pregnancy up till 24 weeks that was earlier limited to 20 weeks under MTP Act, 1971. So, if a woman wishes to terminate her pregnancy between 0 to 20 weeks then the advice of one registered medical practitioner is sufficient but if she wants to terminate her pregnancy between 20 to 24 weeks then the advice of 2 registered medical practitioners is required and that too is allowed in some special cases as provided in Rule 3B of Medical Termination of Pregnancy Rules, 2003. Also, now the MTP Act is not limited to married woman and her husband rather includes any woman and partner.

Another issue that the most vulnerable women faced was the issue of being a surrogate mother due to which many minor girls and young women died. To curb the menace of commercial surrogacy the Surrogacy (Regulation) Act, 2021 was enacted with the aim of prohibiting commercial surrogacy. As commercial surrogacy raised several issues relating to exploitation of surrogate mothers with limited or no enforcement of the agreements made between the parties, no proper healthcare facilities, no physiological and psychological support raising serious ethical issues.

CASE LAWS RELEVANT TO THE REPRODUCTIVE RIGHTS

The Constitution of India has given several rights securing the individuality and dignity of a person and one such right is given under Article 21 of the Constitution of India which brings pearls to the surface from the deep ocean that is, it implicitly provides several rights protecting the autonomy of an individual.

 In the landmark case of Suchitra Srivastava and Another v. Chandigarh Administration, Supreme Court 2009 the court held that, “There is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods.” ^[6]

Another important judgement that formed the basis of reproductive rights is Laxmi Mandal v Deen Dayal Harinagar Hospital and Others, Delhi High Court 2010, in this case the victim woman was denied adequate healthcare services under the government schemes due to which she died after giving birth at home. In this case, the court held that maternal mortality is a violation of human rights and Article 21 of the Constitution of India includes reproductive rights of a woman. The court in this case specifically stated that proper measures should be taken by the government to implement beneficial schemes made for the public.

 X v Principal Secretary health and welfare department, Government of NCT of Delhi and Another, Supreme Court 2022- In this case the court allowed termination of 22 weeks pregnancy and  observed that the choice to have a child or not to have is guaranteed under Article 21 of the Constitution of India.

Minor R. through Mother H v state NCT of Delhi and Another, Delhi High Court, 2023- The court in this case permitted the pregnancy of a 14 year old rape victim who was 25 weeks pregnant and issued guidelines in terminating pregnancies of minor rape victims had laid down that whether to have a child or not is solely the decision of the pregnant woman and not to be influenced by any external sources.

Aryamol PS v Union of India, Kerala High Court, 2023 -The court has given a new interpretation to the MTP Amendment Act 2021. The court stated that even if the women is not legally divorced she does not require the consent of the husband.^[7]

ABC v state of Maharashtra, Bombay High Court, 2023- The court in this case allowed the termination of 35 weeks pregnancy of a married woman due substantial foetal abnormalities. Even though the medical board denied the termination of pregnancy still the court allowed due to substantial foetal abnormalities and on the basis that the choice solely remains with the woman. ^[8]

CONTEMPORARY ISSUES RELATED TO REPRODUCTIVE HEALTH

Even though the country has dealt with many concerns related to reproductive health still issues pertaining to the same persists in the Indian society. As the gender based violence is increasing in the society the overall well-being of a woman is affected.

Still abortion is not considered an option in some families which give importance to life of an unborn child. They basically ignore their economic conditions and the emotional well-being of their partner by forcing them to have multiple children with no resources or support. This results in deterioration of reproductive health and overall well-being of a woman

Another major issue is that, in many households people are still not adopting modern contraceptive methods which led to STIs and unwanted pregnancies then ultimately unsafe abortions due to which maternal mortality rate increases. Also, due to unprotected sexual intercourse, women and men both end up having sexually terminated diseases resulting into a significant challenge to their health.

CONCLUSION

The concept of reproductive health is crucial and the state must play an active role in promoting a better health care system. The Apex Court has also stated that reproductive health is a dimension of Article 21 of the Constitution of India. Even the country has introduced several legislations to protect the reproductive health still the cases of unsafe abortions comes to light. This might be due to social stigma and shame that is still attached to reproductive health care in this patriarchal society. The state must run some awareness programmes in the society to deal with the existing issues and with continued efforts every person would have safe access to reproductive healthcare system.

REFERENCES 

1. Medical Termination of Pregnancy Act, 1971. 
2. THE MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2021
3. Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
4. Surrogacy (Regulation) Act, 2021
5. “X vs. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi and Another” [2022 SCC OnLine SC 1321] <https://privacylibrary.ccgnlud.org/case/x-vs-principal-secretary-health-and-family-welfare-department-govt-of-nct-of-delhi-and-another>.
6. “Suchita Srivastava vs. Chandigarh Administration” [(2009) 14 SCR 989, (2009) 9 SCC 1]<https://privacylibrary.ccgnlud.org/case/suchita-srivastava-vs-chandigarh-administration>.
7. Laxmi Mandal and Ors. Vs. Deen Dayal Harinagar Hospital and Ors.2010:DHC:3102, 172(2010)DLT9 [MANU/DE/1268/2010]
8. Gauri Pillai, “India’s Push-and-Pull on Reproductive Rights” (verfassungsblog, April 17, 2024) <https://verfassungsblog.de/indias-push-and-pull-on-reproductive-rights/>.
9. Chukwudi Onwuachi-Saunders, Que P Dang and Jedidah Murray, “Reproductive Rights, Reproductive Justice: Redefining Challenges to Create Optimal Health for All Women” <https://pmc.ncbi.nlm.nih.gov/articles/PMC9930478/>.
10. “Common Reproductive Health Concerns for Women” (Reproductive Health, May 15, 2024) <https://www.cdc.gov/reproductive-health/women-health/common-concerns.html>.
11. PANKAJ and DR. AJAZ AFZAL LONE, “Reproductive Rights in India:  A Comprehensive Analysis of Laws and Policies” (2020) [Vol. 7 Iss 5; 2189] International Journal of Law Management & Humanities.
12. MAHNAZ AJAZ and DR MUSHTAQ AHMAD DAR, “Reproductive Rights in India: A Comprehensive Analysis of Laws and Policies” (2020) [Volume 6 Iss 3; 379] International Journal of Legal Science and Innovation.
13. Soutik Biswas, “India’s Dark History of Sterilisation” (BBC News, November 14, 2014) <https://www.bbc.com/news/world-asia-india-30040790>.
14. Saumya Maheshwari, “REPRODUCTIVE AUTONOMY IN INDIA” Vol-11-No-2 NALSAR Student Law Review.
15. Bindu Variath, “Constitutional Remedies against Female Foeticide: Evaluating the Effectiveness of the PCPNDT Act in India” Volume 10, Issue 4, 2024 International Journal of Law 144.
16. Wikipedia contributors, “Reproductive Rights” (Wikipedia, June 1, 2025) <https://en.wikipedia.org/wiki/Reproductive_rights>.
17. Rahul’s IAS Official, “Analogy of MTP (Amendment) Act, 2021 with MTP Act, 1971 : With Recent Pronouncements” <https://www.youtube.com/watch?v=uKfaiMMHnzc>.

[1] Chukwudi Onwuachi-Saunders, Que P Dang and Jedidah Murray, “Reproductive Rights, Reproductive Justice: Redefining Challenges to Create Optimal Health for All Women” <https://pmc.ncbi.nlm.nih.gov/articles/PMC9930478/>.

[2] https://en.wikipedia.org/wiki/Reproductive_rights

[3]Medical Termination of Pregnancy Act, 1971

[4] PANKAJ and DR. AJAZ AFZAL LONE, “Reproductive Rights in India:  A Comprehensive Analysis of Laws and Policies” (2020) [Vol. 7 Issue 5; 2189] International Journal of Law Management & Humanities.

[5] Pre- Conception and Pre- Natal Diagnostic Act, 1994

[6] Suchita Srivastava vs. Chandigarh Administration” [(2009) 14 SCR 989, (2009) 9 SCC 1[https://privacylibrary.ccgnlud.org/case/suchita-srivastava-vs-chandigarh-administration]

[7] Rahul’s IAS Official, “Analogy of MTP (Amendment) Act, 2021 with MTP Act, 1971 : With Recent Pronouncements” <https://www.youtube.com/watch?v=uKfaiMMHnzc>.

[8] Ibid.