Reproductive Rights of Women in India

The recent pronouncements by the Supreme Court and some High Courts in India on the reproductive rights of women have given India an image as the protector of women’s rights on reproductive issues. The Supreme Court, through its interpretative approach, has widened the ambit of these rights.

This law note aims to put before you all the statutory provisions, the interpretation of the courts, and a comparative study with other countries regarding reproductive rights in India.

What Are Reproductive Rights?

Reproductive rights mean the right to make reproductive choices freely, i.e., to reproduce or not, to terminate/abort the pregnancy or not, to carry the pregnancy to its full term or not, to bear and raise the child or not, and to use contraceptives or not. It also includes the choice to decide the number of children, their spacing and timing, and also to have access to reproductive health.

Historically, before the 18th century, around the world, these reproductive rights were considered essentially male property rights. Women were not allowed to terminate their pregnancies without the consent of their husbands.

The number of children a woman would carry, their timing, and spacing — all such issues were decided by the governments of their respective countries as a means of population control or greater public good. There was no specific statutory regime to regulate pregnancies and abortions.

The 19th century witnessed two completely opposite movements regarding reproductive choices. One movement was against the idea of abortion. It was argued that abortion is immoral and unethical as it takes away the life of a human being (the unborn child) without any just cause. Also, it poses a great danger to the life of the mother as it is practised without due procedure and by unprofessional medical practitioners.

Conversely, another movement stressed giving women greater autonomy to make decisions regarding their bodies. They stressed the importance of legalising abortions in certain situations and the liberalization of abortion laws.

It was against this background that many countries in the 20th century enacted abortion laws and policies by adopting a middle path between the two extreme views mentioned above. These laws differ from country to country, though all have broadly agreed upon allowing abortion to save the mother’s life.

Statutory Provisions Governing Reproductive Choices in India

The right to make reproductive choices is broadly governed by the Indian Penal Code, 1860, the Medical Termination of Pregnancy Act, 1971 (MTP Act), and the Constitution of India, 1950.

Indian Penal Code

The IPC penalises causing abortion of an unborn child under section 312 if it has not been caused in good faith to save the mother’s life. The section will be applicable as soon as the gestation period (time between conception and birth, during which the embryo or fetus is developing in the uterus) starts. And if the woman is quick with the child, i.e., the movement of the child is felt inside the body, the punishment would extend to seven years of imprisonment.

Medical Termination of Pregnancy Act

However, section 312 of IPC is subject to the provisions of the Medical Termination of Pregnancy Act. This Act allows a woman to terminate her pregnancy under certain circumstances by a registered medical practitioner.

According to section 3 of the Act:

if there are apprehensions (fear) that the continuation of the pregnancy would cause grave risk to her mental or physical health; or
that the child, if born, may suffer from a physical or mental abnormality; or
that the child is the result of the failure of any contraceptive device; or
that the child is the child of a rape victim,

then in those circumstances, a woman is allowed to terminate her pregnancy if the length of pregnancy doesn’t exceed 24 weeks.

This limitation of 24 weeks will not be applicable if the child has been diagnosed with a substantial foetal abnormality.

Must Read: What Are the Changes Made by the Medical Termination of Pregnancy Amendment Act of 2021?

Indian Constitution

Under the Constitution of India, the right to make reproductive choices flows from Article 21, Article 14 and Article 15 and is a product of judicial interpretation.

In the case of Suchita Srivastava vs Chandigarh Administration (2009), the Supreme Court, while recognising the woman’s right to privacy, dignity, and bodily integrity, held that the right to procreate or abstain from procreating and termination of pregnancy all come under the dimension of personal liberty under Article 21. In lieu of exercising these rights, a woman may make decisions concerning her body.

However, the said choice is not unlimited and may only be exercised within the limits of the Medical Termination of Pregnancy Act, as the State also has a compelling need to protect the lives of the unborn.

Judicial Pronouncement on Reproductive Rights

As mentioned in the preceding paragraph of this article, the judiciary, through its interpretation, has widened the scope of statutory provisions to bestow on women greater reproductive rights.

In X vs Principle Secretary of Health Services, the Supreme Court held that these provisions of the Medical Termination of Pregnancy Act require a liberal and purposeful interpretation, and therefore, pregnancy may be terminated by any woman irrespective of her marital status, whether married, unmarried, divorced, or widowed. The choices related to the family, marriage, procreation, and sexual orientation are integral to personal liberty.

Pregnancy may also be terminated by a couple in a live-in relationship. In S Khushboo vs Kanniammal (2010), it was clarified that though marriage is a recognised and important social institution, certain individuals don’t hold the same view. In those cases, sexual relations outside the marital wedlock are also acceptable.

Also, some High Courts like Bombay and Delhi have, extended the limits of 24 weeks and have allowed women to terminate their pregnancies beyond this time period.

Must Read: Is an Unmarried Woman Legally Allowed to Have an Abortion in India?

India and the World – A Comparative Analysis of Reproductive Rights

India has witnessed progress in not only recognising but also protecting and upholding women’s reproductive rights. All the countries in the world recognise a woman’s right to abort the baby to prevent danger to her own life. However, relatively few countries allow a woman to exercise this right to prevent danger to her physical or mental being or terminate pregnancies resulting from rape or the failure of contraceptives.

For example, India’s neighbours like Bangladesh allow termination of pregnancy only to save the life of the woman, and Pakistan allows it to save the woman’s life when it causes a great risk to her physical and mental being.

Contrary to this, some countries like Canada, China, Denmark, and some European countries allow this pregnancy termination at the women’s request. Women in those countries exercise full autonomy.

In the United States of America, until recently, the case of Roe vs Wade was widely celebrated as it recognised the right to abortion as a constitutional right and an inherent feature of personal liberty. The decision was overturned in Dobbs vs Jackson, and it categorically denied any such right. The decision is an aberration in that the countries are taking positive steps to extend these rights further.

Conclusion

India’s balancing approach, i.e., recognising women’s right to terminate their pregnancy on the one hand and imposing reasonable restrictions to save the life of the unborn on the other, is appropriate and relevant. The greater autonomy granted by the judicial pronouncements has further extended the scope of the exercise of these rights in hitherto patriarchal societies.

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Naina Agarwal

Writer at WritingLaw

Naina has written this article. She is a practising advocate at the Rajasthan High Court, Jaipur. She likes to create legal awareness among the masses and simplify the law.