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“Combating Stereotypes” –Patterns Of Reproductive Justice Of Women With Intellectual Disability.
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“COMBATING STEREOTYPES” –PATTERNS OF REPRODUCTIVE
JUSTICE OF WOMEN WITH INTELLECTUAL
DISABILITY.
AUTHORED BY - DR. ASHA.J,
ASST.PROFESSOR,
NSS LAW COLLEGE, KOTTIYAM
ABSTRACT
The reproductive rights of women with mental or
intellectual disability are a theme of apprehension for all stakeholders,
including their parents, family, and caregivers and treating medical
practitioners etc. In a patriarchal society like India, access or denial to
reproductive rights for women with intellectual disability is a core issue with
lots of social stigmatization. Actually reproductive and disability justice are
both human right based framework at their core. In India, women with intellectual disabilities, especially those who
live on the intersection of different socio-cultural identities, face an extra
layer of challenge because the reproductive justice framework includes
not only a woman’s right not to have a child, but also the right to have
children and to raise them with dignity in safe, healthy, and supportive
environment. Comprehensively, this definition broaden the frame beyond narrow
pro-choice advocacy for an opposition to motherhood of mentally challenged
mothers, and a concomitant belief that people with disabilities lack capacity
to consent rather than they are subject
to the choices of nondisabled parents, professionals, or other do-gooders. Therefore
whether the women with mental disability have right to bodily autonomy, right
to reproduction, right to permanent sterilization, right to abortion etc is
still confused with social stigmas, misunderstandings and miscommunication
particularly around abortion. But the new era is reframing this conversation to
be more inclusive of the parenthood of multi marginalized communities like
LGBTQ and people with mental disabilities etc.
Therefore, this article tries to understand how the current law in India
and the societal structures protect and support the women with intellectual
disability from making reproductive health decisions that are right for them
and what policy solution must be drafted to ensure reproductive justice to all
sections of society.
KEY WORDS: Women with
intellectual disability, Medical termination of pregnancy, Right to abortion,
Permanent sterilization, Reproductive Justice, The
Rights of Persons with Disabilities Act, 2016, (RPwD) and the Mental Healthcare
Act, 2017.
INTRODUCTION
Disability not only pertains to
having a physical or mental form of mutilation, it is extracted from the vicinity
of social stigma, exclusion and a vicious circle of adversity. It is a heart
breaking experience for persons with disability to lead impoverished lives and
to be denied socio economic opportunities. This article aims to radiate on a hypothesis
of how law correlate with intellectually disabled women in affecting their
rights and social inclusion especially in case of reproductive justice. This
results in the pro- life versus pro-choice debate and the prospect of
reproductive justice distribution in India. Therefore, it will be far-sighted
to observe the pro–choice centered activism for intellectually disabled women
from the lens of both social and legal aspects to comprehend their issues with
clarity.
REPRODUCTIVE RIGHTS
Reproductive rights are the human
rights which include their right to have control over body and decide freely
and responsibly on matters related to procreation, sexuality, abortion without
coercion, discrimination and violence[1].
Therefore an individual can choose to
plan on having a family, right to child birth, terminate a pregnancy and gain
access to reproductive health services etc.
During previous epoch, not much significance
was provided to these rights and majority of women were uninformed of these rights,
as a consequence of which there was a decline in the socio-economic well-being
and overall health of women[2].
Like other women, women with
intellectual disabilities also bear children but a substantial percentage of pregnancies
in women with intellectual disabilities are accidental and unintentional. Such
pregnancies create distress not only to mother but also to family who may not
have emotional and financial resources to manage a child. So society and family
even though they have a responsibility to care for such children take a
decision to prevent such children being born. It is on the basis that the
biological mother is unable to provide them safety and nurturing they require[3].
Furthermore the care givers and medical practioners argue that the mothers are
exposed to medications for their disability, and the children may exposed to
toxic substance in utero and also may face genetic issues , so to prevent birth
of high –risk children they suggest abortions in cases of pregnancy even though
it is a quasi ethical solution. So still
the conflict and confusion in the intersection of socio-legal field is that
what is best for intellectually challenged women and we can find a critical
gap. The reproductive rights of mother and the rights of a child to be born in
a protective nurturing atmosphere without health issues should be given equal
importance.
So, non discriminatory, culture–sensitive,
social justice provision of care based assumption is that reproductive justice
on marginalize groups are getting worse not better for any women including the
disabled[4].
Most importantly, the right to reproductive
justice forms a critical fraction of the intellectually challenged person’s
human rights frame. A reproductive justice framework believes in social change,
in contextualizing rights and locating them within broader concerns such as
race, caste, class, sexual orientation, disability and mental health .With innumerable
campaigns by the feministic movement across the world, this right has been shaped by concerns about
sexuality and morality. A reproductive rights framework lays emphasis on the
right of a woman to be able to exercise her right to decide the questions of women’s .dignity,
autonomy, bodily integrity and privacy. It may be general for women but for
mentally challenged women, the practicability of giving consent to her
reproductive right is a big question before law. Here arises various questions
like permanent sterilizations, abortions, marriage and other issues and its decisions
are taken by their guardians because they are not they have no capacity to
consent. These women’s pro-life, pro-choice ideologies clash with political,
legal and medical formalities and Indian law opens a serious query of
intellectually challenged women’s decisional and reproductive autonomy[5].
MAIN ISSUES FACED BY WOMEN WITH
INTELLECTUAL DISABILITY WHILE ACCESSING THEIR REPRODUCTIVE RIGHTS.
1.
Women with disabilities experience double
stigma and discrimination in society.
2.
Harmful
stereo types, norm, morals, taboos, attitudes and manners related to sexual and
reproductive rights of women with intellectual disability are a query of formal
and substantial equality.
3.
Harmful
practices such as forced sterilization, medication and child birth and forced
marriages and some time denial to family life are faced by them.
4.
Gender
discrimination may vary from “general comments from public” to domestic
violence.
5.
Stigmas
along with gender disparity leads women of minute intellectual disability being
unable to access education, job, societal support, marriage and reproductive
right etc.
6.
Forced
medications, tubal legations, hysterectomy and forced use of contraceptives and
other methods to suppress sexuality/ childbirth and to ensure that they keep
within the bounds of appropriate behavior in society.
7.
Non
access to reproductive health services which detrimentally affect the menstrual
hygiene, pregnancy and child birth.
8.
Violence/
sexual abuses, HIV AIDS and other sexually transmitted diseases vulnerability
due to abuses.
9.
Forced
institutionalization and inhuman treatment experienced by disabled women even
in home, work place, health settings and institutions.
Reproductive justice
stress on equal relationships in human beings in the matter of marriage, sexual
orientation, reproduction, including the right to integrity, consent and shared
responsibility for sexual behavior and its consequences[6]. There
is a marginalization of mentally ill women in India by saying that the
intellectually challenged persons lack capacity to consent. It is inimical to
the rights of mentally ill women to allow stereotypes about them to inform
policies and decisions that concern something so intimate and personal to a
woman. While dealing with this issue, the common mistake is that mental illness
and intellectual disability are treated as synonyms and it is surprising that
the intersections between them have for so long been ignored or deliberately
made invisible even in law.
The crossroads between
intellectual health, disability and reproductive justice has not merited much
awareness in India. While there has been a wave of progressive judgments[7]
delivered by the Indian higher judiciary in recent times recognizing the right
to reproductive choices and privacy, the discussion unfortunately has not
engaged much with the question of the reproductive rights of women with mental
illness. Reproductive rights are a relatively new concept, and it gained
traction after the International Conference on Population and Development
(ICPD)[8]
and not gained that much popularity in India.
Discrimination is against
women with disabilities by stigmatizing and questioning their ability to make
decisions, owing to their gender and their disability. When a woman is
disabled, she faces double discrimination and a higher risk of maltreatment and
exploitation. In a developing country such as India, reproductive rights and
sexual wellbeing is still an evolving sphere and viewed with judgmental eyes. An
intellectually disabled woman is usually considered as a person who is asexual
and dependant on others and hence, assumed to be unable to make decisions
regarding their sexual autonomy and reproductive rights. Even the submissive
and unresponsive women who are not able to follow traditional gender roles are
labeled as abnormal in character. Hence the analysis and identification of a
women’s intellectual disability should be the core condition to decide whether
she should be denied with her reproductive rights aswellas care and
rehabilitation.
LEGAL PROVISIONS IN INDIA
1.
RIGHTS OF PEOPLE WITH DISABILITIES
ACT, 2016.
The Act was enacted to implement the
UN convention on Rights of Persons with Disabilities[9].The
Act mainly deals with non- discrimination, full and effective participation and
inclusion in society[10].
Furthermore, it deals with emphasize on respect for difference and acceptance
of disabilities as part of human diversity, humanity, equality of opportunity
between men and women[11]. The
Act also takes care of the protection of people from being subjected to
torture, cruel, inhuman or degrading treatment[12]. This
Act Widened the definition of disability and it included 21 types of
disabilities[13].
But the main criticism
against RPWD Act, 2016 is that the Act does not include any provision related
to a person suffering with mental disability or intellectual disability. The
Act does not draw any distinction between mental illness and intellectual
disability also. It is also pointed out that these legislation should have a
clear shift from charity based statute to a Right based statute. But this
legislation has not shown clear insight in handling women with intellectual
disability. As per the recent Supreme Court decision in marriage is not a
fundamental right, still there should be some reference of marriage rights of
mentally and intellectually disabled persons. In India, while there are
Ministry of Health guidelines for sterilization of men and women, there is no
explicit and clear provision against forced sterilization of girls and women
with disabilities.[14]
2.
MENTAL HEALTH ACT,2017
The definition of mental illness[15]
in this Act is a progressive way to address the issues. Mental health Act, 2017
includes analysis and diagnosis of a person’s mental condition and treatment
aswellas care and rehabilitation of mental illness. This Act includes Right to
access to mental health care, Right to mental health record, Right to equality
and non discrimination and right to protection from inhuman treatments. [16]
But this Act also faces
severe criticism that it does not recognize the rights of mentally disabled
persons. Furthermore it excludes the mental retardation which is a condition of
arrested or incomplete development of mind of a person, especially
characterized by sub normality of intelligence. So there is no provision in
this Act to handle the human right issues of intellectually disabled women[17].
So this legislation in respect of mental health is at cross roads and also need
a process of periodic review and revision to receive priority attention to
intellectually disabled women.
In 2021, parliament
amended the law to allow for abortion of pregnancies based on the advice of one
doctor from 20 weeks to 24 weeks. The
amendment made Indian abortion law more progressive but it did not recognize
abortion on demand as a pregnant person’s right[19].
But it was a reply to the repeating requests to safe medical support to avoid
unwanted pregnancies beyond gestational period. Regardless of fulfilling the
legal necessities of mentally challenged person’s reproductive rights were
considered against a checklist for eligibility for termination beyond 24 weeks
were found wanting .Sec.3(2)(b)of MTP Act,2021
protections which covered sexual assault survivors, minors, disabled
persons ,mentally ill persons ,fetal abnormality or pregnancy during
humanitarian crisis[20].
Indian law does not
properly differentiate between mental illness and intellectual disabilities as
a ground for termination of pregnancy. In various cases[21],
judiciary also failed to understand the multiple submissions regarding mental
health, postpartum depressions, psychosis, suicidal tendencies and tendency to
cause harm to her and to children. Court refused to grant permission on the
basis of these grounds and sometimes even endorsed the harmful stereotypes
while drafting decisions.
CASE LAWS RELATED TO REPRODUCTIVE RIGHTS OF DISABLED PERSONS
In India, the debate bordering
reproductive rights has been pushed to the forefront of contemporary legal
discussion following some recent developments. They are the following
Suchitra Srivastava v. Union of India[22], is a landmark judgment which held
that a women’s right to make reproductive choices was a component to of right
to personal liberty under Art.21 of Constitution. The rape victim of this case
was abandoned by her parents at an early age and she was suffering from an
intellectual disability. An expert body examined the women’s mental status and
opinioned that she is suffering from mild mental retardation.
There were concerns
regarding the victim’s mental competence to cope up with the maternal
responsibilities and child care. High court invoked the concept of “parens patriae” and directed for
termination of pregnancy for the best interest of the victim.
Supreme Court
differentiated between mental illness and mental retardation. People with
mental retardation if they are above 18 years old can take decisions over their
reproductive rights was decided and it was a transformative judgment which
upheld the reproductive autonomy of intellectually disabled women.
Further more in Mamta Verma v. UOI,[23]
and Meera Santhosh Pal v. UOI[24]
unequivocally pronounced that the freedom to make reproductive choices is a
facet of women’s personal liberty.Tapasya
Umesh Pisal v. UOI[25], Court observed that compelling to
continue unwanted pregnancy will impact their physical and mental health also.
Cry For Life society v. Union of India[26] was a case decided in 2020, where
the petitioner argued for a writ to be passed declaring article 3(2)(ii) of the
Medical termination Of Pregnancy Act unconstitutional as it violated article 21
of the constitution. The court assured her that it was the choice of the women
to protect her body integrity and have privacy which are conferred to her under
Article 21 of the constitution[27].
In XYZ v. State of Gujrat[28], it was held that a women along has
the right over her body and is the ultimate decision maker on the question of
her reproductive rights. In X v.
Principal Secretary[29],
Supreme Court articulated that MTP Act, 1971 act as an aid of interpretation
and it should be used to interpret the injury to metal health and right to
reproductive autonomy must be ensured through this. It was also pointed out
that women is the ultimate decision maker
in her reproductive choices.
In X v. Union of India[30], Supreme Court by overruling various
decisions[31] denied
the termination of pregnancy and this decision was criticized by the supporters
of reproductive rights. The Court observed that statutory period of 24 weeks
crossed in this case and there were no foetal abnormalities and two medical
reports emphasized that the petitioner has no physical issues also. But
petitioner argued that she is having severe mental issues but the court denied
the termination of pregnancy. Unfortunately, the issues underlying the
reproductive rights debate have not received sufficient focus by Indian courts’.
RECOMMENDATIONS
There is a need for
judicial or legislative intervention to clarify the many legal issues involved
in the reproductive rights of intellectually disabled women. Following are some recommendations for the same.
1.
Recognize
the rights of women with disabilities.
2.
States
should be accountable for respecting, protecting and fulfilling their rights.
3.
Right
based disability inclusive and gender responsive policies, programmes and
legislation making is the need of the hour.
4.
Provide
equal opportunities for education, self development and work for girls and
women with disabilities.
5.
Access
to comprehensive sexuality education and sexual and reproductive health
information to girls and women with disability.
6.
Prevention
and timely respond to violence and abused experience by women in all settings
including home, work place etc.
7.
Reduce
stigmas, stereotyping and discrimination by raising awareness on disability and
reproductive rights and include women with intellectual disability in to
society through change of mind sets.
8.
Inclusion
of women with disabilities in to main stream of society through integration
rather than segregation.
9.
State
should withdraw from the provider centric approach to a right based approach and
women in all conditions if capable to give consent should be provided with
decision making power with autonomy over her body.
10.
The
constitutional status of reproductive rights or the more fundamental right to
privacy should be dealt with more clarity.
11.
There
is an imperative need to sensitize the legislature and the judiciary to the
fact that reproductive choices as personal choices with which the State must
not interfere lightly.
CONCLUSION
The women are
disempowered in India due to the hetero patriarchal system in India and are
subjected to the denials inflicted by society. But the Constitutional framework
in India holds a transformative movement towards reproductive rights to reduce
discriminatory gender stereotypes. While there are limitations to ensure the
rights of intellectually disabled persons still the state and judiciary is
trying for an affirmative obligation of reducing discrimination of intellectually
disabled women and provide recommendations to a general face of reproductive
justice. It aims at moving away from the traditional emphasis to a more
holistic approach to humanity of intellectually disabled women. In various
decisions[32], Supreme
Court articulated and highlighted the transformative potential of privacy, right
to life, equality and reproductive rights among all gender types. It is high time
that every woman’s right to self-determination and control over her own body
should work together to achieve the goal of equal recognition irrespective of
their status. The reproductive justice frameworks, which grants sexual and
reproductive agency to intellectually and mentally ill women, must be adopted
into Indian legal discourse and inform future developments in laws on gender
and sexuality without by-passing a right based approach.
Moreover, there is a need
for the disability inclusive and women friendly legal framework in national,
regional and international laws to address and recognize the promotion and
protection of reproductive rights of intellectually challenged women in India.
The comprehensive health education on sexual and reproductive health services
is the need of time because reproductive justice is critical for equality for
all gender types and disabled persons. There is a need for the government to
take initiative to make reproductive right as a prime concern in the health
policies since reproductive right is the indicator to know the status of women
in the society. There is a need to have access to appropriate, affordable and
quality health care facilities and related services for challenged and disabled
women. The proper monitoring of health programmes made with more result
oriented scheme is necessary. There is an urge to have a comprehensive and
robust legislation on reproductive justice in order to protect and promote
equality and reproductive health of intellectually challenged women.
Reproductive right should not be the eugenics of state to interfere in the
dignity and decisional autonomy of women.
[1] Dr. Sushama Sharma,
Reproductive Rights and women Health: a New Prospective, 4 Inl. Jnl. of Humanities and
Social Science Inventions, 2319, 2319 – 7714 (Apr. 2015).
[2] Palguna M& Jagruthi Rao, An
Insight In to The Development Of Reproductive Rights Of Women With Special
Reference To India, 1 Indique Law Journal 1-1(2023).
[3] Renu Addlakha Mahima Nayar, Disability and Sexuality:
Intersectional Analysis in India, Centre for
Women’s Development Studies, New Delhi.
Occasional paper No.63 (Aug.2017).
[4] Herring, Jonathan (2021) "The Case for Decriminalization
of Abortion 33 Jnl. Of NLU, Delhi 21-38,(2019).
[5] Malavika
Parthasarathy, Integrating Mental Health Perspectives in Legal Discourse on
Reproductive Justice.
[6] Simi Rose
George, Reproductive Rights: A
Comparative Study of Constitutional Jurisprudence, Judicial Attitudes and State
Policies in India and the U.S, 18 NSLR, 92-103 (Oct.2006).
[7] Joseph shine v. Union of India, (2019)3
SCC 39(India). Nav Tej Johar v. Union of India (2018)10 SCC 1(India), Justice
Putta Swami V. Union of India (2017)10 SCC1 (India).
[8] ICPD, held in 1994 in Cairo, helps
to highlight the arguments that were made around the abortion debate.
[9] UN Convention on Rights of Persons
with Disabilities was enacted in 2006 and India being a signatory adopted
convention to national legislation
[10] Rights of People with Disabilities
Act, 2016 , No.49 Act of Parliament 2016,sec.3(1).
[11] Rights of People with Disabilities
Act, 2016, No.49 Act of Parliament 2016, Sec.4.
[12] Rights of People with Disabilities
Act, 2016, No.49 Act of Parliament 2016, Sec. 6.
[13] The disabilities include physical,
mental intellectual and disability resulting from neurological conditions
[14] Rights of People with Disabilities
Act, 2016, No.49 Act of Parliament 2016.
[15] The Mental Health Act,2017
NO.10 Act of parliament ,2017,Sec.2(s) .
[16] Dipika Jain & Shampa Sen Gupta, Reproductive
Rights and disability Rights through an intersectional analysis, 12 JLR, 337-357(2021).
[17] Debutta Naik et.al, Shortcomings
of Mental health Act, 2017, Indian Jnl. of Private Psychiatry 1-2 (2023).
[18] The Medical Termination of
Pregnancy Act, 1971, Act No.34 of 1971.
[19] Ambika Gupta, A critical Analysis
of the short comings of MTP (Amendment) Act 2021, 1, VULJ, 86-103,(Nov.2021).
[20] Poorna Sharma v. Union of India, M.A.2157/2023 in W.P(C) No. 1137/2023 (India). X v. Family
Welfare Department 2022 SCC Online SC 905(India).
[21] X v. Principal Secretary 2022 SCC
Online SC 1321(India)..
[22]
(2009) 9 SCC 1(India).
[23] (2018) 12 SCC 57(India)..
[24] (2017) 3SCC 462 (India).
[25] (2018) 12 SCC 57(India)..
[26] Cry For Life society v. Union Of India,
W.P(C) No.10130/2013(India).
[27]Gauri Pillai, Shades of Life in
Indian Abortion Law, 16 NLSJ, 128-134(2022).
[28] 2023 Live Law (SC) 680(India)..
[29] 2022 SCC Online SC 1321 (India).
[30] (2017) 5 SCC 458 (India).
[31]
Sharmishta Chakraborthy v. UOI(2018)
4 SCC 289(India).. , Nisha Suresh Alam v. UOI, W.P (S.T)No.36727/2017(India).,
A v. UOI (2018)14 SCC 33(India).
[32]
Komal Hiwale v. State of Maharastra, (2020) SLP NO.7379 of 2020(India). Akhila .k
v. UOI (2021) SCC Online Ker.804 (India).
Article Information
“Combating Stereotypes” –Patterns Of Reproductive Justice Of Women With Intellectual Disability.
Authors: Dr.Asha.J
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/19
- Issue 7
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International Journal for Legal Research and Analysis
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