Introduction

“It’s her womb. A woman needs to decide first, whether she wants to be a mother or not.”

Reproductive rights guarantee that every woman is treated with dignity and respect and has the right to enjoy reproductive health, ensuring that every birth is safe and every child is wanted. It is based on the basic rights of the couple and even the individual to decide freely and take such responsibility free from any discrimination, coercion and violence.

Reproductive rights is recognized as an essential right to maintain women’s equality in relation to pregnancy. The Constitution of India recognizes these rights as fundamental rights, including the right to equality and non-discrimination (Articles 14 and 15) and the right to life (Article 21). By way of Article 51(c) of the Constitution, India endeavours to respect international law and treaty. Article 39(a) ensures that justice is not denied to any citizen because of any reason.

India is a signatory to various international treaties, instruments and conventions. Some of them are as under:-

1. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
2. International Covenant on Civil and Political Rights (ICCPR)
3. International Covenant on Economic, Social and Cultural Rights (ICESCR)
4. Convention on the Rights of the Child (CRC)
5. International Conference on Population and Development, 1994 (ICPD)
6. Fourth World Conference on Women (Beijing 1995).

The Medical Termination of Pregnancy Act, 1971

There are some provisions under this act, which gives every woman their right to choose, whether she wants to be a mother or not. One the one hand, this act gives legal right to women for abortion, to those, who are not ready to become a mother and on the other hand this act restricted termination of pregnancy in some situations.

Under section 3(1) of the act, a registered medical practitioner shall not be held guilty of any offence under the Indian Penal Code, if any pregnancy is terminated by him under following circumstances:-

(a)  Termination is within twelve weeks of conceiving.

(b)  pregnancy can be terminated between 12 to 20 weeks with the opinion of minimum two registered medical practitioners, in good faith and in the following situations:-

(i)                 If such pregnancy involves any risk to the life of the pregnant woman, physically or mentally.

(ii)               In case of any substantial risk that the child will be born with physical or mental abnormalities.

Sub- section (4) elaborates upon the consent required for a pregnancy to be terminated:-

      (a) Pregnancy of a woman, below the age of eighteen years or of a person with unsound mind must be terminated with the written consent of her guardian.

       (b)  Those who don’t come under (a), in that case, pregnancy shall be terminated only with the consent of the pregnant woman.

Section 4 of this Act says that the pregnancy can only be terminated in a hospital established by Government or only in such place which is approved by the Government for this purpose.

Section 5 of the act talks about the situations, where Sections 3 and 4 cannot be applied.

According to Sub- section (2), a punishment with rigorous imprisonment for minimum two years extendable to seven years can be given under IPC to a person, if the termination of pregnancy is done by any such person other than a registered medical practitioner.

Sub- section (3) declares if any person terminates any pregnancy in a place not in accordance to section 4, shall be punishable with rigorous imprisonment for minimum two years but extendable to seven years and the owner of such place shall be punishable with rigorous imprisonment for minimum two years extendable to seven years under sub-section (4) of section 5.

What does the Judiciary say?

The Apex Court and the High Courts in India have identified the denial of reproductive rights as violations of fundamental rights of women. The Court states that a woman’s consent not resultant of coercion and free from violence/threat of violence is compulsory as her fundamental and human right. Therefore, Indian Law gives every women, her legal right to take decision, to ensure women’s equality by preventing them from forced pregnancy and giving them a chance of legal abortion.

In the case of Devika Biswas v. Union of India & Other’s[1], the Supreme Court, in the year 2016, held in its judgement that “reproductive rights of a person” is included in Article 21 of the Constitution of India and acknowledged it as the right to health and a part of personal liberty. The Supreme Court held that the reproductive right is a freedom to make a choice and exercise the same for reproduction and it would include the right of abortion as well, provided that the choice is made free from any force or coercion.

In the case of Suchita Srivastava & Anr v. Chandigarh Administration[2], the Supreme Court reiterated that women’s reproductive independence and freedom is a fundamental right, and it is an aspect of ‘personal liberty’ under Article 21.

In 2011, the High Court of Punjab and Haryana, dismissed a suit[3] which was filed by a husband against a doctor, contending that the performance of abortion was took place without his consent. The High Court of Punjab and Haryana held that unwanted pregnancy can affect the mental health of any pregnant woman and whether a woman wants to give birth or not, is totally her personal right and nobody else has the right to interfere in her personal decision, if she wishes to abort her pregnancy.

Then, in the 2013 the High Court of Madhya Pradesh, in the case of Hallo Bi v. State of Madhya Pradesh and Others, declared that the rape victims does not require judicial authorization to abort her pregnancy.

But there are many cases, where the right to abortion have been given to the women beyond the limit of the provision of Section 3 of the MTP Act, due to different reasons. Some abortions have been allowed to save the life of a pregnant woman, some for the sake to a women’s mental and physical well-being.

In the case of Meera Santosh Pal & Others V. Union of India & Others[4], the Supreme Court allowed abortion at 24 weeks of pregnancy as it endangered the life of the pregnant woman. Even many High Courts have allowed abortions in the 20th week of pregnancy in cases of sexual violence.

There has been many cases till now, where the court has recognized that unwanted pregnancies are a burden and forced pregnancy is a violence against women. It is a basic right of a woman to decide how she wants to deal with her pregnancy, because after all, it’s her body who will be carrying the baby for the whole term of 9 months. And she has all the right and control over her own body.

The reproductive rights of a woman, not only includes the above mentioned provisions and the cases based on the MTP Act, 1971, but it also includes the rights of surrogate mothers provided under The Surrogacy (regulation) bill, 2016.

The Surrogacy (regulation) bill, 2016

As in surrogacy, a woman (the surrogate mother) agrees by way of a legal agreement, to bear and give birth to a child for another person, this law is required for the purpose of safeguarding the interest of both, the surrogate mother and child. In India, only Indian citizens and a married couple (man and woman) are allowed to get a child by the process of surrogacy.

In this process, the surrogate mother is not given any monetary benefit for giving birth to a child for another person except her medical costs during her pregnancy, called altruistic surrogacy, defined in Section 2 of this act. This act restricts Commercial surrogacy. TThe purpose of the same is to prevent exploitation of surrogate mothers and reinforce the protection to women who may be lured into this business.

A surrogate mother has also been given the right to abort the child, and the termination of pregnancy must be done in accordance with the MTP Act, 1971. And a written consent of the surrogate mother is a must for the termination of her pregnancy under section 3 (6) of this Act. The intending parents cannot take decision for the termination of the pregnancy of the surrogate mother.  

Under Section 6, if a woman wishes to be a surrogate mother, she must give her consent in writing after being told all the side effects of the birth and forced abortion of the surrogate mother is restricted under section 9 of the act.

The bill also provides that a woman can surrogate once in her lifetime between the ages of 25 to 35 years. She must be married and have her own child and must be a close relative of the intending parents.

Country- wise comparison

The rights of abortion have been compared in five categories. They are:-

Category 1- The countries like El Salvador, Malta, the Vatican, Chile, the Dominican Republic, and Nicaragua come under this category.These countries have a very strict laws on abortion. They refuse abortion under any circumstances, even if it is important to save her  life, or the child is a result of any rape, child abuse, molestation or the that foetus have any severe abnormality, physically or mentally, women still have to give birth to the child.

Category 2- The countries like Brazil, Mexico, Bhutan, Libya, etc allows abortion to save the life of pregnent woman. Some of these countries also allow abortion if, the child is a result of rape or molestation, etc

Category 3- These countries give little more relaxation than the countries of category 2 and 3. The countries like Argentina, Bolivia, Peru, Saudi Arabia, Thailand often allow abortion under broad health grounds, in cases, where the child will born with abnormalities. 

Category 4- The countries like India, Britain, Japan permit abortion under more laxed circumstances like social or economic circumstances, other hindrances in women’s life, etc.

Category 5- These countries give maximum relaxation. The countries include China, some states of USA, Canada, Australia, South Africa and many European countries have gestational limit of 12 weeks, but abortion is often allowed after 12 weeks due to the reason of saving women’s life or where pregnancy results from rape, etc.

Conclusion

It is a basic and fundamental right of every girl and woman that she can make decisions, whether she wants to be a mother or not. It took a long time to secure this right but in today’s times every women must know about her reproductive rights, so that her child does not become a cause of any forced pregnancy or is forced into abortion against her will. These laws restrict discrimination towards women’s authority, and promote women’s dignity, autonomy, and bodily integrity.

At last, I would like to conclude by saying that pregnancy and motherhood has nothing to do with the marital status of a woman. It is the society, who made rules for everything. An unmarried woman has the right to give birth to her own child and a married woman has the right to abort her pregnancy, if she is not ready to be a mother. It’s her womb, it’s her body , so it’s her right to decide what she wants.

 Endnotes

1. Devika Biswas v. Union of India & Others, W.P. (C) 81/2012.
2. Suchita Srivastava & Anr v. Chandigarh Administration, (2009) 11 S.C.C. 409.
3. Dr Mangla Dogra & Others v. Anil Kumar Malhotra & Others, C.R. 6337/2011; Ajay Kumar Pasricha & Others. v. Anil Kumar Mahotra & Others, C.R. 6017/2011.
4. Meera Santosh Pal & Others V. Union of India & Others., (2017) W.P. (C) No. 17.