An Assessment Of The Women’s Reproductive Choice In India In The Light Of Article 12 Of CEDAW
Author: LawSphereX
Category: General Law
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AN ASSESSMENT OF THE WOMEN’S REPRODUCTIVE
CHOICE IN INDIA IN THE LIGHT OF ARTICLE 12 OF CEDAW
Nargis Bano, Jamia Millia Islamia
ABSTRACT
The status of women remains the worst especially when it comes to their reproductive health and choices. They are significantly denied of their fundamental and basic human rights, including the right to privacy, bodily integrity and autonomy over their own bodies. Majority of the women in India are unaware about their reproductive rights and those who are informed often face formidable social and cultural obstacles in exercising their rights. The International Bill of Rights and various other international conventions and covenants, particularly CEDAW, have unequivocally recognized women's reproductive rights, yet the realization of these rights remains elusive for many due to persistent gender-based discrimination and inequality.
Article 12 of CEDAW mandates the elimination of discrimination against women in healthcare ensuring access to services including those relating to family planning and reproductive health. As a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), India has undertaken various legislative measures to protect and promote the women’s interest in their reproductive rights and choices across the country. One such prominent legislation is the Medical Termination of Pregnancy Act, 1971 (MTPA). The paper will initially try to address the status of women reproductive health and choices under the international covenants and conventions. Later on, the paper will shift towards the effectiveness of MTPA in safeguarding and promoting women reproductive choices in India and the latest amendments brought into.
The paper will conclude while focusing on the role played by judiciary in promoting women’s reproductive choices and in overcoming the loopholes present in the MTPA Act. The paper will suggest some reforms that necessarily seek the attention of the governmental bodies as well of the common people in this arena.
INTRODUCTION
Health of any being is an indispensable part of one’s life. Everyone wants them to live their live truly as per their aspirations and choices and health plays a very significant part therein. Article 21 of the Constitution of India entrusts to every individual right to life which includes right to health. The court has persistently reiterated that Right to life means something more than mere animal existence. The Right to Life unquestionably includes right to health as pronounced by the Hon’ble Apex Court in bunch of cases – Pramanad Katara v. Union of India & Ors. 1, Consumer Education & Research Centre & Ors. v. Union of India 2, etc. The expression ‘right to life’ includes everything that concerns or preserves body integrity and autonomy. It includes right to reproductive choices.
But the burning question is that whether every individual including woman is equally enjoying their right to health. Whether women have preferences over their bodily integrity or reproductive choices? The lex terrae of India have not made any sort of discrimination on the ground of sex while entrusting Right to Life to individuals. Nevertheless, the real world is somewhat different. Women are not being able to fully exercise their reproductive choices or anything that concern their body integrity or autonomy. Approximately, 47 million pregnancies occur annually out of which 45 % of them are unintended. About half of the women who episode medical complications related to pregnancy or delivery do not get adequate medical attention or treatments. Additionally, approximately 49 million of women in India have an unmet need for contraception.
This expressly highlights that woman reproductive health status is not up to the adequate standards in India. The Reproductive health of women is not merely a major concern for India but a matter of concern for the whole world. Better reproductive health is very crucial for a women’s overall wellbeing. It leads to healthy creation of generations. Therefore, the founding of the United Nations in 1945 and the subsequent adoption of the Universal Declaration of Human Rights in
1948 marked a significant milestone in the recognition of women's right to health, which,
although not directly stated, has implicitly acknowledged and has since become an integral part of international human rights norms. Article 253 of the UDHR set forth ‘motherhood and childhood are entitled to special care and assistance’. Nevertheless, Article 25 doesn’t talks
1 Pramanad Katara v. Union of India & Ors, (1989) AIR 2039 (India).
2 Consumer Education & Research Centre & Ors. v. Union of India, 1995 AIR 922 (India).
3 The Universal Declaration of human Rights, art. 25, 1948
about the choice of a woman to accept her motherhood. It is only dealing with one particular aspect of reproductive rights and is not inclusive at all. Additionally, the Article is very vague and general in nature. Similarly, International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR) also deals with only a single aspect of women reproductive health under Article 10 (2). As per Article 10 (2)4 of ICESCR, special protection should be accorded to mothers during a reasonable period before and after childbirth. Moreover, under ICESCR, it depends upon the state means and ability to determine the extent of such rights available to their nationals.
Since both the UDHR and ICESCR deals with one particular aspect of women’s reproductive rights and does not talks directly about women’s right to abortion or reproductive choices thereby we will shift towards other international treaties or conventions. The Convention on the Elimination of All Forms of Discrimination against (CEDAW) Women under Article 12 encompasses on the women’s reproductive rights. Article 125 states that state parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.
It further states that states parties shall ensure to women appropriate services in connection with pregnancy, confinement and the postnatal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation. India signed this convention on July 30, 1980 and ratified on July 9,
1993. Being a signatory of CEDAW, India is under legal obligation to provide reproductive
rights mentioned therein to all the women in India. India must provide women a free access to reproductive education and awareness through various social programs. It must secure women reproductive choices by enacting appropriate legislations. Therefore, India in pursuance of its international obligations has enacted various legislations and social programs to provide women a wide range of reproductive choices to them. In India, women's rights to make decisions about their own bodies are protected and secured by law, including the right to choose a safe and legal abortion. The Medical Termination of Pregnancy Act (MTPA) of 1971, as amended in 2021, outlines specific circumstances and
4 The International Covenant on Economic, Social and Cultural Rights, art. 10, 1966
5 The Convention on the Elimination of All Forms of Discrimination against Women, art.12, 1979.
gestational limits under which abortion is permitted, upholding women's autonomy and reproductive freedom. MTPA IN SECURING WOMEN’S REPRODUCTIVE RIGHTS IN INDIA In earlier times, abortion is considered to be a moral wrong even if the pregnancy is unwanted or by rape. Various social taboos were attached to it. Even in contemporary times, some areas or section of the society still hold such opinions. Bearing in mind the same approach, both the substantive and procedural laws of India initially criminalized abortion for the mother as well as for the abortionist. The Process continued until the year 1971. But with the passage of time and the development of human right jurisprudence, such taboos became to decline. Now, women bodily integrity is given preferences; she has been given the right to terminate the pregnancies if it is unwanted or causes serious health issues to her.
Women’s body cannot be used as a tool for procreation of children. Therefore, the government in the year 1964 constituted a committee to understand the concept of abortion from different socio- cultural, legal and medical perspective. The committee was known as Shantilal Shah Committee. The committee comprehensively studied and rationalized the status of abortion in India. Based on the recommendation of the committee, the Indian Government passed the Medical Termination of Pregnancy Act, 1971 (MTPA). The intentional termination of pregnancies before the foetus can survive on its own outside the uterus is referred to as abortion. The MTPA Act provides for a safe and effective termination of pregnancies at the initial stages. This right becomes very significant in cases of unwanted pregnancies. The law is an exception to criminalization of abortion in India.
The term unwanted pregnancies means pregnancies not from the inner will of the woman rather under force or other threatening measures. The MTPA doesn’t encourage termination of pregnancies in all cases and at all stages. Section 3 of the Act, subject to the amendment in the year 2021, has laid down the circumstances under which the pregnancies can be terminated. Under the relevant provision, a pregnancy not exceeding for more than twenty weeks can be terminated through a registered medical practitioner. The pregnancies exceeding twenty weeks but not exceeding twenty four weeks can only be terminated based on the opinion of at least two registered medical practitioner. The abortion is a very strong and personal decision thereby it requires consultancy from a well learned professional The Section expressly states that the opinion of the registered medical practitioner must be bona fide.
The opinion will be considered bonafide only when either the continuance of pregnancy would involve danger to the life of the woman or grave injury to her physical or psychological health or there is a great risk that if the child were born it would suffer from any physical or mental abnormalities. The explanation of the Section further add that the anguish caused to the women either because of failure of use of any device by her or her partner restricting the number of children or because the pregnancy occur by rape would be considered as grave injury to the body and mental health of the women. Before The Medical Termination of Pregnancy Act (Amendment) Act, 2021, the time limitation for the termination of pregnancies was restricted only up to twelve weeks or up to the twenty weeks based on the opinion of two medical practitioners.
In pregnancies exceeding twenty weeks, the Act does not provide any provision for its termination even if it causes grave injuries to the woman. However, after the amendment Section 2B has been added which provides for the termination of pregnancy at any stage if the same is considered mandatory by diagnosis of any of substantial foetal abnormalities as diagnosed by a Medical Board. For this purpose, the amendment has also provided for the formulation of a Medical Board which shall consist of a gynecologist, pediatrician and radiologist or sonologist. The Medical Board will be set up by the State Government. Most significantly, the Act has exceeded the right to abortion even to the unmarried women. Nevertheless, the decision of abortion is affected by various factors like individual circumstances, health concerns, socio economic reasons, personal views, support networks, etc.
The right of legally abortion is not fairly accessible in India. Women in rural still are bound by certain socio economic factors which many times undermines their choices to terminate pregnancy even if it dangerous for her health. Additionally, women in rural areas do not have access to trained legal professionals or hospital where they can seek advice regarding abortions. Under the MTPA Act, a pregnant cannot exercise her right to terminate pregnancies on her own. In fact, decision of doctors for abortions is a mandatory one. The law has a doctor-centric approach. Therefore, though the MTPA Act safeguards the women’s reproductive rights but it has certain shortcomings such as: ● Doctor Centric Legislation: Section 3 of the MTPA Act, mandates the opinion of doctor without which abortion cannot be given affect.
It is therefore not a personal choice of a woman which she can freely exercise as per her wishes and wills. Moreover, no time limitation has been ascribed for the doctor’s or Medical Board’s decision. ● Regional Disparity: Women of every geographical region in India are not able to effectively exercise their right to abort under certain circumstances. In fact, majority of the women living in rural areas are totally unaware about such right or protection. ● Abstruse about Inclusion of Transgenders: The Act is silent on the right of transgenders to abort in cases of pregnancies. ● Lack of Accountability: On a close perusal of MTPA Act, it appears that if the medical board or doctor’s refused to abort and if the subsequently death is caused because of denial then no accountability of doctor’s arises in such cases.
Therefore, the taking into light the aforementioned drawbacks of MTPA Act; it requires serious attention of the government. RIGHT TO ABORT: JUDICIAL INETRVENTION Judiciary as a protector and guarantor of fundamental right has played a significant role in securing the women reproductive choices and rights. In many cases, judiciary has also attempted to overcome the loopholes present in the MTPA Act. In Suchita Srivastava v. Chandigarh Administration6, the Hon’ble Apex Court ruled that right to make reproductive choices is an essential element of right to personal liberty guaranteed under Article 21 of the Constitution of India. The same principle was upheld by the Hon’ble Court in the matter of Mamta Verma v. Union of India7 wherein the Hon’ble Court adjudged that women have the right to refuse procreation of children. The Hon’ble Supreme Court of India in the case of A v.
Union of India8 permitted the termination of pregnancy of 26 weeks as the further development of foetus was in grave danger to mother’s life and moreover the foetus was also suffering from incurable medical conditions making its survival outside the mother’s womb a difficult condition.
6 Suchita Srivastava v. Chandigarh Administration, (2009) 13 SCR 989 (India).
7Mamta Verma v. Union of India, (2023): PHHC: 039497 (India).
8 A v. Union of India, (2018) 14 SCC 75 (India).
In Pramod A. Solanke v. Dean of BJ Govt. Medical College9, the court allowed the abortion of a minor girl victim of rape. The court held that such pregnancies are not only physically injurious but also causes serious mental, emotional and psychological imbalances to the women. The most landmark and progressive judgement of the Hon’ble Apex Court is X v. Principal Secretary Health and Family Welfare Department & Anr10. In the groundbreaking ruling, the Supreme Court stressed that in a society striving for gender equality, it is crucial to interpret the Medical Termination of Pregnancy (MTP) Act and Rules in a manner that acknowledges and addresses the current social context and realities. The court ruled that under the MTPA Act every woman including transgenders have a right to abortion. Health is crucial for every individual irrespective of its gender.
The court further held that the right to terminate pregnancy is solely a right bestowed with women. The court keeping in tune its progressive approach held that pregnancy arising from marital rapes can also be terminated under the MTPA Act. The court held that denial of such right to married woman would force them to have children with tormentor partner. Such circumstances would further make the life of a woman hell. The court further issue direction to RMPs (Registered Medical Practitioners) to grant abortion services without any extra-legal conditions like family or spouse consent, documentation requirement. Most significantly, the court recognized several structures barriers that adversely impact access to abortion services in including lack of access to health services, bureaucracy, poverty, etc.
Hence, the court issued directions to the Government ensuring that all pregnant women are able to access abortion and contraception services, information regarding reproductive health, etc. Medical services and RMP must be accessible in every district to every pregnant woman irrespective of economic background. However, all the earlier attempts of the judiciary were shattered in 2023 when the Hon’ble Apex Court denied the termination of pregnancy to a woman suffering from serious mental disorder. The case is X v. Union of India11. The petitioner in the present case discovered her pregnancy after 24 weeks due to a condition known as lactational amenorrhea. However, in a surprising turn of events, the SC prioritized the arguments related to fetal viability and the
9 Pramod A. Solanke v. Dean of BJ Govt. Medical College, (2020) SCC OnLine Bom 639 (India).
10 X v. Principal Secretary Health and Family Welfare Department & Anr, (2022) SCC OnLine SC 1321 (India) .
11 X v. Union of India, 2017 10 SCC 1 (India).
rights of unborn child over the petitioner’s reproductive autonomy, marking a significant shift in the court’s approach. The court was ambiguous in accepting mental illness as a ground for termination of pregnancy. Notwithstanding the Petitioner’s submission concerning her suicidal tendencies, postpartum depression and psychosis, the court denied her demand to terminate pregnancy. The court through this ruling left a significantly question on the mind of individuals what constitute a danger to woman’s life? Therefore, one can say that court stand on termination of pregnancies is still inconsistent. There are several cases wherein a woman despite having serious danger to her health was denied termination of pregnancy. Additionally, the rights of unborn child are in most of the cases creating a huge obstacle for women in exercising their reproductive choices.
Therefore, the judges should need to create a fine balance between the two sects of rights. Excess emphasizing on the rights of unborn child even when the pregnant mother suffers from serious mental or physical disorder could cause serious injustice with the right of the living mother.
CONCLUSION
In the light of the words articulated above, it can be deducted that India has taken significant steps towards safeguarding the reproductive right of women particularly regarding the termination of pregnancy. The passing of the Medical Termination of Pregnancy Act, 1971 was a milestone achievement for India. Further, the Amendment in 2021 whereby the arena of MTPA Act was widened has contributed a lot to the protection of women reproductive choices. However, despite MTPA Act, the right to abortion as women’s reproductive right as well as choice still suffers from serious obstacles. The women right to reproduction is her personal choice only in letter and not in spirit. Such choice is undermined by various social and legal barriers.
Additionally, the mandatory opinion of Medical Practitioners before the termination of pregnancy does not make it a woman’s personal choice concerning her bodily integrity and autonomy. Also MTPA Act is silent on the reproductive choice of transgenders. However, Indian judiciary has made various attempts to overcome certain loopholes present under the MTPA Act but there is a lot of inconsistency among them. Many times the court has taken a progressive approach in securing women reproductive rights whereas on some serious cases it has taken retrogressive approach. Many times the courts get into the debate of protecting right of unborn child over the rights of pregnant mothers. The court while dealing with such sensitive cases should try to achieve a fine balance between the rights of unborn child and pregnant mothers.
The rights of unborn child are not more important than the life of the mothers.