Open Access Research Article
LEGAL PROTECTION OF REPRODUCTIVE HEALTH OF WOMEN IN INDIA (By-Ms. Gargi Singh)
Published Paper
Article Details
LEGAL
PROTECTION OF REPRODUCTIVE HEALTH OF WOMEN IN INDIA
Authored By-Ms. Gargi Singh
Assistant Professor of Law,
School of Legal Studies
K R MANGALAM UNIVERSITY, GURUGRAM
Abstract
As a subset of human rights,
reproductive rights were developed. Parents have a basic human right to make
their own decisions such as the number and spacing of their children in a
rational way. Regardless of the population's socioeconomic status,
religion, or culture issues concerning reproductive rights are fiercely
disputed. There are certain international conventions which talk about the
reproductive rights of women such as Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW) has helped ensuring reproductive rights
as basic human rights.
Generally, reproductive rights refer
to an individual's ability to choose whether or not to procreate and to
maintain reproductive health. This could include the right to start a family,
end a pregnancy i.e. to have an abortion, use contraception, learn about sex
education in public schools, and obtain reproductive health services.
In case of our own country India,
supreme court through its decision has ensured that the reproductive rights are
a part of women’s fundamental rights. After such decisions the women in India are
not able to exercise their reproductive rights because of our societal
structure. The India society is still stereotypical in case of sex education,
neither the girls and boys are taught about it nor told by peers instead it’s a
taboo to even talk about topics like sex and if a person use terms like sex,
pregnancy, contraception etc. the person is seen with condescending views by the society and its peers. A women asking
about contraception is considered as a taboo in India and people call them
inappropriate and of low moral character.
Keywords: Reproductive Rights and
health, CEDAW, sex education, contraception, abortion, fertility treatment.
Introduction
Social change is never easy,
especially when it involves fundamental male-female relationships in families
and society. There is a developing understanding of how the laws controlling
men and women's opportunities, societal endowments, and behaviors affect their
chances of accelerated development and justice. To create a better living for
both women and men in the period of globalization and urbanization, societies
require their own answers, based on a vision of justice and gender equality and
congruent with their cultures and conditions.
Reproductive rights, according to the
International Conference on Population and Development (ICPD), "rest on
the recognition of the basic right of all couples and individuals to decide
freely and responsibly the number, spacing and timing of their children and to
have the information and means to do so, and the right to attain the highest
standard of sexual and reproductive health."
The language is taken from Article
16(1)(e) of the Women’s Convention, which states that States Parties shall
ensure on a basis of equality of men and women:
"the same rights to decide
freely and responsibly on the number and spacing of their children, and to have
access to the information, education and means to enable them to exercise these
rights."
In today’s time reproductive rights
is a major concern on the International front because except the developed
countries both the developing and under-developed countries still does not
recognize reproductive rights of women as of the women’s rights. In certain
countries women does not have basic human rights, while the concept of
reproductive rights is still alien to them. The women in these countries are
treated for pleasure or pronatalism. The simpler concepts such as reproductive
health and sex education are not heard by them or they simply ignore them as
they fear change.
Reproductive health is
defined in paragraph 7.2 of the ICPD Programme of Action as "a state of
complete physical, mental and social well-being ... in all matters related to
the reproductive system", which "implies that people are able to have
a satisfying and safe sex life and that they have the capability to reproduce
and the freedom to decide if, when and how often to do so." Reproductive
health is also a very serious matter as many women lose their life due to low
reproductive health and pregnancy complications.
According to WHO Reports, Maternal
Mortality is the highest in U.S. with 26.4 MMR (deaths per 100,000 live
births), second highest in U. K. with 9.2 MMR. The global maternal mortality
rate in 2020 was 152 deaths per 100,000 live births. When developed countries
like U.K. and U.S. have such high mortality rate the underdeveloped countries
have a higher risk.
The United Nations have worked
forward in securing women’s reproductive rights through 2 documents:
1. Convention on Elimination of All
Forms of Discrimination Against Women (CEDAW), 1979
2. The International Conference on
Population and Development held in Cairo in 1994 (also known as Vienna
Declaration and programme of Action)
As for India the Acts applicable for
the protection of women’s reproductive health are:
1. Constitution of India
2. Medical Termination of Pregnancy Act,
1972
3. Pre-Conception and Pre-Natal
Diagnostic Techniques Act, 1994
We will be discussing both the
International perspective and its applicability in India in this Chapter.
International
Perspective On Reproductive Rights
Governments have forged a series of
human rights treaties and international conference agreements over several
decades, increasingly influenced by a growing global movement for women's
rights, to offer a legal foundation for ending gender discrimination and
gender-based rights violations. They help I ensuring equal rights to both men
and women and direct state to take actions in case of its contravention or
discriminatory practices. The Vienna Declaration and Programme of Action, The
International Conference on Population and Development (ICPD) and the Platform
for Action which was adopted through the Fourth World Conference on Women
(FWCW) and CEDAW are the international agreements whose objective is to secure
women’s empowerment and gender equality.
These agreements along with the human rights law emphasis on the
Reproductive and sexual rights of women.
The WHO defines reproductive rights
as:
“Reproductive rights rest on the
recognition of the basic right of all couples and individuals to decide freely
and responsibly the number, spacing and timing of their children and to have
information to do so, and right to
attain the highest standard of sexual and reproductive health. They also
include the right of all to make decisions concerning reproduction free of
discrimination, coercion and violence.”
Some of the reproductive rights of
Women are:
1. Right to control one’s reproductive
functions
2. Right to access reproductive choices
which are free of coercion, discrimination and violence.
3. Right to acquire sexual and
reproductive education including contraception, sexually transmitted diseases
and freedom from coerced sterilization and contraception.
4. Right to legal and safe abortion
5. Right to resist gender based
practices such as genital cutting and mutilation.
The
Convention On Elimination Of All Forms Of Discriminationagainst Women (Cedaw)
This Convention On Elimination of All
Forms of Discrimination Against Women (CEDAW), 1979 mainly defines the rights
of women to be free from any type of discrimination. It is the only human
rights treaty which talks and provides for the reproductive rights of women.
This Convention directs its state parties to submit periodic reports of women’s
status in their country.
The Convention's preamble states
unequivocally that "extensive discrimination against women continues to
exist," and that such discrimination "violates the principles of
equality of rights and respect for human dignity." Discrimination is
defined as "any distinction, exclusion, or restriction made on the basis
of sex...in the political, economic, social, cultural, civil, or any other
field," as specified in article 1. The Convention affirms the principle of
equality by requiring States Parties to take "all appropriate measures,
including legislation, to ensure the full development and advancement of women,
with a view to ensuring their exercise and enjoyment of human rights and
fundamental freedoms on an equal footing with men"[1].
It lay emphasis on many civil,
social, political and economic rights of woman. But apart from this it also
focuses on reproductive rights of the women. The preamble of the act also
emphasis on the reproductive rights that “the role of women in procreating
should not be a basis of discrimination”. Article 5 of the Convention stated
that to understand completely of maternity is a social function and it ensures
that both sexes equally take responsibility in rearing a child.
Similarly, provisions relating to
child care and maternity protection are incorporated in the convention in all
fields be it family law, core health and medical laws, education and
employment.
Certain measures to be taken during
maternity to protect a women are also incorporated and are said to be
non-discriminatory.[2] It also
states that a woman has a right to decide to procreate or not i.e. she has a
reproductive choice. Also, this was the first human right treaty on family
planning.
Another aspect this Convention
directs the state parties to change their stereotypical, cultural and political
beliefs to ensure women’s reproductive rights by providing maternity leave with
full remuneration, comparable social benefits, prohibition of dismissal on
grounds of pregnancy or on marital status, to provide child care facilities,
special protection during pregnancy and protection of health and safety
including function of reproduction.[3]
Also, the center for reproductive
rights have established 12 Human rights as a key to Reproductive rights which
are:[4]
1. The Right to Life
2. The Right to Liberty and Security of
Person
3. The Right to Health, including Sexual
and Reproductive Health
4. The Right to Decide the Number and
Spacing of Children
5. The Right to Consent to Marriage and
to Equality in Marriage
6. The Right to Privacy
7. The Right to Equality and
Non-Discrimination
8. The Right to be Free from Practices
that Harm Women and Girls
9. The Right to Not Be Subjected to
Torture or Other Cruel, Inhuman, or Degrading Treatment or Punishment
10. The Right to be Free from Sexual and
Gender-Based Violence
11. The Right to Access Sexual and
Reproductive Health Education and Family Planning Information
12. The Right to Enjoy Scientific
Progress
The International Conference On Population
And Development (ICPD)
This convention set up a new standard
in case of human reproduction and health. This conference first time focused an
interrelationship between human rights and health and threw a light on women’s
empowerment by promoting reproductive health. The approach adopted by this
conference was to depart from the view that women are instruments and arrived
on a view that women themselves are concerned about their reproductive health
and well-being. It changed women's reproductive capability from a tool for
population control to a means for women to exercise personal autonomy over
sexual and reproductive health in lieu of her social, political and economic
rights. The primary principle of the ICPD is to promote and develop population
programs in terms of a women’s reproductive health. ICPD tried to achieve these
goals by first defining the scope of reproductive health and reproductive
rights.
Article 16(1)(e) of the convention
provides the right to decide the number and spacing between children. The
convention also promotes the right to work in safe conditions including
protecting the function of reproduction[5]. It also prohibits female genital mutilation
or cutting along with a women’s right against sexual violence, to deny any
sexual relations to protect herself from HIV/ AIDS and reproduction.
The woman also has an autonomy
concerning her sexuality and fertility which need to be free of coercion and
violence. This right provides a co-relative duty to doctors and women to keep
confidentiality and provide all alternatives to choose and to exercise the
right to refuse treatment. It is also the duty of the health workers to make a
women make decisions on her own without involvement of anyone else as an
individual.
“So, the ICPD and CEDAW recognized
women’s rights to reproductive and sexual health being key to women’s health.
Rights to reproductive and sexual health include the right to life, liberty and
the security of the person; the right to health care and information; and the
right to non-discrimination in the allocation of resources to health services
and in their availability and accessibility.”[6]
National
Perspective Of Reproductive Rights
Despite the fact that India was one
of the first countries in the world to develop legal and policy frameworks
ensuring access to abortion and contraception, women and girls continue to face
significant obstacles to fully exercising their reproductive rights, including
poor health services and denials of decision-making authority.
In the past, India's reproductive
health laws and policies have failed to prioritize women's rights, instead
focusing on demographic goals such as population control, simultaneously
implicitly or explicitly undermining women's reproductive autonomy through
provisions which are discriminatory in nature such as consent of spousal to
access the reproductive health services. Despite a national legislation
prohibiting girls under the age of 18 from marrying and laws and initiatives
ensuring women's maternal healthcare, India continues to have the greatest number
of child marriages and 20 percent of all maternal fatalities worldwide.
India has committed to ethical and
professional standards in family planning services, including the right to
personal reproductive autonomy and collective gender equality, as a signatory
to the International Conference on Population and Development in 1994.[7] At
least on paper, Indian policies and regulations appear to reflect this idea.
The right to a voluntary and informed choice in contraception is affirmed in
the National Population Policy of 2000.[8]
The major legislations protecting the
reproductive rights of women are discussed below:
Constitution
Of India
The first right is granted through
Article 13 of our constitution which prohibits the state to frame such laws
which violates a person’s fundamental right. The reproductive right is also
embodied in Various Articles given under Part III of the Constitution of India.
These are Article 14,15,16 & 21.
Within India's jurisdiction, Article
14 bans the state from denying anyone equality before the law or equal
protection under the law.so, this right guarantees the women same freedom as
that of men to decide about their reproductive rights. This also includes the
right to use contraception and to protect oneself from Sexually Transmitted
diseases.
Article 15(1) prevents the state from
discriminating against citizens on the basis of religion, race, caste, sex,
birthplace, or any combination of these factors. Articles 15(2) and 15(3) allow
the state to make particular arrangements for women and children, as well as
for socially and educationally disadvantaged citizens (including women),
Scheduled Castes, and Scheduled Tribes. No matter which caste, literacy level a
woman belongs she has the same Reproductive rights.
While India's Constitution does not
directly recognize the right to health (or reproductive rights), various
Supreme Court rulings have construed the right to health and the right to
prompt and adequate medical treatment as crucial to the right to life. The
Supreme Court held in Parmanand Katara v Union of India[9], a
public interest litigation (PIL) involving the provision of emergency medical
treatment to injured victims of motor vehicle accidents, that Article 21 of the
Constitution requires the State to preserve life, and doctors at government
hospitals are obligated to provide medical assistance to save lives.
In Suchita Srivastava and Others v
Chandigarh Administration[10],
the Supreme Court declared that reproductive autonomy is a facet of human
liberty protected by Article 21. It stated, "It is critical to recognize
that reproductive choices can be used to both procreate and refrain from
procreation." The most important aspect is to respect a woman's right to
privacy, dignity, and bodily integrity. This indicates that there should be no
restrictions on a woman's ability to exercise reproductive choices, such as the
right to decline sexual engagement or the insistence on the use of
contraceptive techniques. Furthermore, women have the option of using birth
control measures such as sterilization treatments.
In the cases of Laxmi Mandal v. Deen
Dayal Harinagar Hospital & Ors. and Jaitun v. Maternity Home, MCD, Jangpura
& Ors., the Delhi High Court issued a historic joint ruling in 2011
involving denials of maternal health treatment to two women living below the
poverty line. "These petitions focus on two inherent survival rights that
form part of the right to life: the right to health (which would include the
right to access) and the right to food," the Court stated. and are provided
with a basic level of treatment and care in public health-care facilities
and, in particular, women's reproductive rights.
Medical
Termination Of Pregnancy Act, 1972
This Act provides for legally
terminating such pregnancies by registered medical practioners for reasons such
as the women’s health etc. This Act also provides for certain pregnancies which
will be considered as illegal such as-
·
Forcing
a woman for abortion
·
Abortion
carried by midwives, nurses or quacks.
·
For
the purpose of female infanticide.
Terminating a pregnancy effects a
women’s body in many ways sometimes even leading to deaths. Therefore, the
right to choose to get abortion is also one of the reproductive right
guaranteed in India.
Pre-Conception
And Pre-Natal Diagnostic Techniques Act, 1994
This Act mainly focuses on the pre-
natal diagnostic i.e. to confirm the sex of the child before its birth. It is
prohibited to confirm the sex before birth to avoid cases of abortion which are
a result of female feticide. This Act also prohibits to sell such diagnostic
machines to unregistered medical practioners and a punishment is also pertained
if the medical practioners are found guilty of pre- natal diagnosis which is an
imprisonment of 5 years and fine of Rs. 10,000/- or it may even lead to removal
of his name from medical practioner’s register.
This Act allows ultrasound of the
fetus only in certain conditions by the medical practioner such as-
·
check
for any abnormalities,
·
when
the age of women is above 35 years,
·
when
the women have had 2 or more spontaneous fetal losses,
·
when
the pregnant women have been exposed to drugs or harmful radiations,
·
to
diagnose any genetic diseases
Indian
Judicial Perspective On Reproductive Rights
Reproductive rights are not directly provided in or
Constitution or any legislation but our judiciary has interpreted that the
right to life given under Article 21 entails right to health. And reproduction
forms the most important part of a women’s health, so somewhere reproductive
rights of a women are fundamental rights guaranteed under Article 21 of the
Indian Constitution. In this judgement, the Supreme Court stated explicitly
that Article 21 covers "a person's reproductive rights." The Supreme
Court defined reproductive rights as the right to "access a range of
reproductive health information, goods, facilities, and services to enable
individuals to make informed, free, and responsible decisions about their
reproductive behavior" as part of the right to health and as an aspect of
personal liberty under Article 21. "The freedom to exercise these
reproductive rights includes their right to make a choice about
sterilization on the basis of informed consent and free from any kind of
coercion," the Supreme Court said.[11]
The Medical termination of Pregnancy
Act allows termination of pregnancy up to 20 weeks, but between April 2016 till
now the Supreme Court has allowed termination of pregnancy of nearly 55
petitions, out of which around 35 were cases of rape victims.
Women's autonomy and gender equality
were recognized as key parts of women's constitutionally protected reproductive
rights in the case of Devika Biswas v. Union of India & Ors[12].,
which went beyond the reproductive health framework. The state policies and
practices that lead to sterilization abuse, according to the Supreme Court,
infringe women's fundamental and human rights.[13]
This decision is a big step forward from previous Supreme Court decisions that
supported abuses of reproductive autonomy based on population growth concerns.[14]
In a case of High court on its Own
Motion v. State of Maharashtra (2016), the Bombay High Court decided that the
women prisoners also have full right to terminate their pregnancy and also
affirmed that having an abortion does not challenge her right to live with
dignity under Article 21. The court also recognized that unwanted pregnancies
is a burden on women’s health and to continue such pregnancy: represents a
violation of her bodily integrity and aggravates mental trauma resulting in
poor mental health”. The court recognized that
“an unborn fetus is not an entity
with human rights. The pregnancy takes place within the body of a woman and has
profound effects on her health, mental well-being and life. Thus, how she wants
to deal with this pregnancy must be a decision she and she alone can make. The
right to control their own body and fertility and motherhood choices should be
left to the women alone. Let us not lose sight of the basic right of women: the
right to autonomy and to decide what to do with their own bodies, including
whether or not to get pregnant and stay pregnant”[15]
The Indian courts have been working
hard by addressing legal and practical barriers which does not allow a woman to
exercise her reproductive rights.
Conclusion
Reproductive health and right to
reproductive health is not only women issue it is a family health and social
issue. The ultimate aim of the right to reproduction is well being of the
family and individuals. At the same time, it becomes the responsibility of the
governments to give quality reproductive health care and protect the individual
reproductive rights while being sensitive to local and cultural issues. There
is increased need for sensitization of the judicial and government while
protecting the reproductive rights of people with disability especially mental
retardation and mental illness. There is also a greater demand for judicial
system enlightenment on the procedure of consent to abortion. Men's involvement
and active community participation are required to achieve high-quality
reproductive health care (spouse).
Comprehensive health rights include
reproductive and sexual health rights. To guarantee that these rights are
fulfilled, a country must have a well-developed public health system that is
capable of providing comprehensive, high-quality health care services that are
accessible to all, free at the point of use, and, above all, responsible to
citizens.
Unfortunately, India's public health
system is beset by a slew of problems, including a lack of public investment,
inadequate infrastructure, including medical and diagnostic facilities, and
under-skilled human resources.
With the health system there is a
great social lag also in our country where the women talking about process like
sterilization, contraception’s and a NO to sexual activities is considered to
be of bad moral character. Saying NO is compared with not complying with your
husband wishes who a woman should consider Gods. But if the husbands are Gods
than that makes a Women a Goddess and her wishes must be respected by allowing
her to make her own decisions about her reproductive health.
With advent of time the people will
put their beliefs back and the women will be able to enjoy their reproductive
rights. Though, we are long way away from providing the women their
reproductive rights the Indian Courts are working hard to uphold women’s
reproductive rights, reproductive health and autonomy, emerging issues if
surrogacy and also includes marginal populations in upcoming litigations.
Article Information
LEGAL PROTECTION OF REPRODUCTIVE HEALTH OF WOMEN IN INDIA (By-Ms. Gargi Singh)
Authors: Ms. Gargi Singh
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/09/08
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.