Reproductive Rights In Indian Constitution - Empowering Choice, Ensuring Justice

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T20:55:30.88784+00:00

Updated: 2026-08-26T17:09:43.977+00:00

REPRODUCTIVE RIGHTS IN INDIAN CONSTITUTION:

EMPOWERING CHOICE, ENSURING JUSTICE

Shalu Sharma, Ph.D. Research Scholar, Seedling School of Law and Governance, Jaipur National University, Jaipur

ABSTRACT

World Heath Day, 2025 celebrated on 7th April kick started a campaign on maternal and new-born baby’s health. The Campaign titled ‘Healthy Beginnings, Hopeful Future’ was initiated by the World Health Organization and its partners to support women everywhere physically and emotionally before, during and after birth. The health of mothers and babies is the foundation of healthy families and communities which ensures hopeful futures for all. 1 This campaign once again brought global attention to the issue of woman’s reproductive rights. While the campaign emphasizes global health goals, this paper narrows its lens to India’s legal and constitutional framework surrounding maternal and reproductive rights.

This paper discusses the provisions of the Indian Constitution, which protects the Reproductive Rights of women in India and mandate the states to follow the international covenants aimed at protecting and promoting the Reproductive Rights. It also provides directives that requires the state to take explicit steps to ensure the health of the pregnant women and protect their decision-making regarding pregnancy. The Indian Judiciary has also declared Reproductive Rights as ‘Inalienable survival Rights’ under the umbrella of Right to Life and through various precedents protected the Reproductive Rights of women. A few of these landmark judgements are also discussed in this paper. By examining legal provisions and landmark judgments, this paper aims to evaluate how effectively India safeguards women’s reproductive choices in both letter and spirit.

Keywords: Reproductive Rights, Indian Constitution, International Covenants, Fundamental Rights, Directive Principles of State Policy, Right to Life.

1 https://www.who.int/campaigns/world-health-day/2025

Introduction Indian Constitution is a living document which means that the it can be interpreted to meet the changing social dynamics. This feature of the constitution allows the Indian Judiciary to dive into the dimensions of its provisions in search of solutions to new emerging problems that arise over passing times. Article 21 is one such part of this deep ocean where many rights have taken shelter under the heading ‘Right to Life and Personal Liberty’. Reproductive Rights is one such right, recognized as a part of the right to life. In its landmark judgment Maneka Gandhi V. Union of India2 the Hon’ble Supreme Court expanded the horizons of Article 21 and held that ‘Life’ does not merely refer to the physical act of breathing or mere animal existence. It includes within its ambit the right to live with human dignity and all that goes along with it.

This fundamental right also gives birth to the right to bodily autonomy which revolves around the reproductive rights and the right over one’s own body. Women are the vulnerable section of the society and are often not able to freely exercise their rights including reproductive rights. The increase in maternal morbidity and mortality brought the issue of reproductive rights in light. The Programme of Action adopted at the ICPD3 referred to the term ‘Reproductive Rights’ as “... certain human rights that are already recognised in International human Right documents and other consensus documents.

” These documents include the Convention on the Elimination of All forms of Discrimination against Women (CEDAW)4, the International Covenant on Civil and Political Rights (ICCPR)5, the International Covenant on Economic, Social and Cultural Rights (ICESCR)6, the Universal declaration of Human Rights (UDHR)7, etc. Reproductive rights include the right to choose whether or not to have a child and, if so, when to have it, the right to choose birth control measures, the right to have legal and safe abortion, the right to choose spacing between children, the right to have adequate reproductive health care and the right to have access to education about contraception and Sexually Transmitted diseases. They also encompass freedom from coerced sterilization and contraception. These rights further guide policies made by the governments for improving health of the expecting mothers.

2 AIR 1978 SC 597

3 International Conference on Population and Development, 1994

4 1979

5 1966

6 1966

7 1948

Reproductive Rights is relatively a new concept, but it has always been a part of Fundamental Rights and it is also a well-recognised Human Right. It is widely accepted that the burden of child bearing and rearing lies primarily on woman and a woman’s health, security, autonomy, liberty, privacy, equality, non- discrimination and right to education cannot be protected without ensuring her reproductive rights. Human rights and reproductive rights go hand in hand, as human rights cannot be achieved without providing reproductive rights and the reproductive rights derive their essence from human rights. The Indian Constitution incorporates human rights in the form of Fundamental rights and Directive Principles of State policy.

As societal needs evolve, the state can elevate certain directives to the status of Fundamental Rights when effectively implemented, as demonstrated by the Right to Education (Article 21A). Once elevated, these rights become enforceable by the courts. Similarly, Reproductive Rights are protected by the constitution Fundamental rights and Directive Principles of State policy. These constitutional provisions are examined in detail in this paper- Article 21 – Right to Life and Personal Liberty Article 21 of the Indian constitution provides the Fundamental Right of Right to Life and Personal liberty. However, this right cannot be exercised meaningfully without protection of various supporting rights that are not provided in black and white but interpreted within the broad scope of Article 21.

The Supreme Court of India has, over time, expanded the scope of the Right to life through a catena of landmark judgements. As a result, reproductive rights have also been recognized under this ambit, encompassing rights such as the right to abortion, the right to health, the right to have access to contraceptive measures, among others. In Suchita Srivastav V. Chandigarh Administration8, the Hon’ble Supreme Court held that the Right to make Reproductive choices is also a dimension of ‘personal liberty’ as provided under Article 21. The court recognized that the reproductive choice can be exercised to procreate as well as to abstain from procreating.

A woman’s privacy, dignity and bodily integrity should be respected, which means that women should have autonomy in exercising reproductive choices such as woman’s right to refuse participation in sexual activity or the right to insist on the use of contraceptive measures. Women are free to choose birth control measures and to opt for

8 [2009] 13 S.C.R. 989

sterilization. Reproductive rights comprise the privilege to get pregnant, carry the pregnancy to full term and give birth to a child. They also include the Right to opt for an Abortion. However, the Right to abortion is subject to reasonable restrictions contained in the Medical Termination of Pregnancy Act, 1971. There has been a constant debate on whether the Reproductive rights of a woman outweigh the right to life of the foetus. Various judgements have been delivered in favour of both the aspects but the recent trends shows that the rights of the mother have been given precedence over the rights of a child. In 2012, the Madhya Pradesh high Court in Sandesh Bansal v.

Union of India9 held that it is the primary duty of the government to ensure that every woman survives pregnancy and childbirth as the inability of a woman to survive pregnancy and childbirth violates her right to life guaranteed under Article 21. In the case of State of Rajasthan V. S10, Rajasthan High Court held that since a woman’s right to make reproductive choices has been recognized as a dimension of personal liberty by the Hon’ble Supreme court, the denial of such right will cause mental agony and trauma to the woman. Thus, it may be reiterated that the fundamental right of a woman to get the pregnancy terminated outweighs the right to life of the unborn. In Devika Biswas V. Union of India & Ors. 11, the Hon’ble Supreme Court recognized the need to respect the reproductive rights and reproductive health of a person.

It held that the freedom to exercise reproductive rights includes the right to make an informed and consensual decision regarding sterilization. Sterilization policies should be made gender neutral and the unnecessary focus on female sterilization should be discontinued. The Hon’ble Supreme Court through its various judgements affirmed that the ‘inalienable survival rights’ under Article 21 include the reproductive rights of a woman. Recently in A (Mother of X) v. State of Maharashtra & Anr. 12, the Hon’ble Supreme Court widened the arena and held that the term ‘pregnant person’ should be used instead of ‘pregnant woman’ to include pregnancies experienced by non-binary people and transgender men. Consent of the pregnant person in matters of reproductive choice and abortion is paramount.

9 W.P. (C) 9061/2008

10 Double Bench Special Appeal Writ No. 1344/2019. Order dated 01.05.2020.

11 [2016] AIR 4405

12 [2024] 5 S.C.R. 470

In 2011, the Delhi High Court issued a landmark joint decision in the cases of Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors. 13 and Jaitun v. Maternity Home, MCD, Jangpura & Ors. 14and held that a woman especially a pregnant woman should be provided access to health services irrespective of her social or economic status. The Right to have access to proper healthcare is also a part of reproductive rights of a woman. Right to Privacy The right of a woman to end pregnancy was first recognised by the United States Supreme Court through the fundamental principles of privacy and liberty in the case of Roe v. Wade15. However, this landmark judgement was overturned in Dobbs v. Jackson Women's Health Organization16, giving individual states the power to regulate abortion laws.

This decision was widely criticized as a regressive step after years of progress and for violating the rights of women. In India, the Right to privacy was declared intrinsic to life and liberty by the landmark judgement Justice K. S. Puttaswamy(Retd) v. Union of India17. The Right to Privacy falls within the golden triangle of Article 14,19,21 of the Constitution of India, 1950. The Hon’ble Supreme Court held that the Right to privacy is a concomitant of an individual’s right over their own personality. Reproductive Rights are also recognised as inherent to the right to privacy. The nine-judge bench unanimously affirmed that bodily, mental and decisional autonomy fall within the umbrella of privacy. In the case of Independent Thought Vs. Union of India & Anr. 18, issues related to a woman’s reproductive rights were addressed.

The court held that a woman has autonomy over her body and is the sole authority in decisions regarding her reproductive choices. Human rights of a woman do not vary by her age or marital status. While marital rape is not recognised as a crime unless the wife is below 18 years of age, it is evident that such acts can lead to unwanted pregnancies. In such cases, a woman should have the right to decide whether she wishes to carry the pregnancy to term, free from societal pressures. In multiple judgements, the Hon’ble

13 W.P. (C) No. 8853/2008

14 W.P. (C) 8853/2008 & 10700/2009, Delhi High Court (2010)

15 410 US 113 (1973)

16 597 U.S. 215 (2022)

17 [2019] (1) SCC 1

18 [2017] 13 S.C.R. 821

Supreme Court and High courts have reiterated that a woman cannot be compelled to give birth to a child conceived through rape, as it would cause lifetime trauma and agony to the woman. The anguish and the humiliation experienced by the woman would undoubtedly lead to grave injury to her mental health. If the sexual life of a person is a matter of privacy, so too is the pregnancy resulting from such an act. The pregnancy takes effect within the body of the woman and it impacts her life physically, emotionally, socially and economically. Therefore, only she has the right to decide how to handle it. The decision to control her body, fertility and motherhood should rest solely with her. Both married and unmarried women should be able to explore other scientific methods of achieving pregnancy, made possible through advancements in science.

Let us not lose sight of the basic human rights of women that is; the Right to autonomy and to make decisions about their own bodies; including whether or not to conceive or continue a pregnancy. 19 Article 14- Right to Equality One of the oldest and most fundamental rights demanded by humanity is the right to be treated equally, regardless of differences. This right was enshrined in the Indian Constitution in 1950, yet discrimination against women continue to persist in the society. Naturally and biologically, women are entrusted with the ability to conceive and give birth to a child, a role often celebrated as one of the most beautiful feelings in the world. However, societal expectations can transform this natural function into a burden, forcing women to carry pregnancies and raise children against their will.

Such coercion violates a range of fundamental rights; the right to education, the right to work, the right to be free from torture, the right to privacy, the right to health and in extreme cases even the right to life. When a pregnancy is unwanted or results from a criminal act, the mental and physical trauma suffered by a woman is immense. It is said that the pain of delivering a baby is equivalent to breaking 20 bones at once, imagine enduring that pain to deliver a rapist’s child or an unwanted baby. Women have to go through this unimaginable pain of giving birth and in cases multiple births and it must be acknowledged as more than just physical, it is emotional, social and psychological. Hence it is the responsibility of the state to protect and ensure the Reproductive rights of women so that they are not 19 High Court on its own Motion v. The State of Maharashtra, W. P. (CRL) No.

1/2016, Maharashtra H. C. ; Court on Its Own Motion Lajja Devi v. State, W. P. (CRL) No. 338 (2008) (High Court of Delhi)

penalized or discriminated against for fulfilling a biological responsibility bestowed by nature. The Right to equality and the Right to make informed decisions about one’s reproductive health are intertwined. Denying a woman the right to make crucial choices about when and how to bear children undermines her autonomy and erodes her status as an equal individual. This not only affects her ability to thrive in her life but also impacts her family and community. Article

14 also ensures that every woman have equal access to reproductive healthcare facilities, free

from discrimination based on socio- economic differences. This right also protects the equal status of women in availability of contraceptives and abortion measures, irrespective of the social and physical setting in which she situates. The focus from female sterilization should be shifted towards male sterilization as it is less complicated. To protect the Right to equality and right to work judiciary, legislature and administration should focus towards eliminating Pregnancy Discrimination, where working pregnant woman are considered a burden on the institution and they are discriminated in pay, promotion, bonuses and often have to face layoff. There are often lack of creches at workplace which forces women to leave their jobs and they robbed of their right to equality.

Not only the Reproductive Rights of women should be promoted and protected, but also those rights which in any manner impacts the life of a woman who go through pregnancy. Article 15(3) – Special Provisions for Women and Children Recognising women and children as marginalised sections of the society, Article 15(3) empowers the state to make special provisions for their advancement. Various initiatives have been undertaken to uplift the status of women, including reservations in government services and legislative bodies. In addition, several key laws have been enacted to govern and safeguard Reproductive Rights, such as The Medical Termination of Pregnancy Act, 1971, The Pre- Conception and Pre-natal diagnostic techniques act,1994, The Surrogacy (Regulation) Act, 2021, The Prohibition of Child Marriage Act, 2005, The Maternity Benefit Act,1961 etc.

These Laws form the legislative backbone supporting the exercise of Reproductive Rights by women in India. Article 39A- Access to Justice and Free Legal Aid Although, Article 39A does not explicitly address reproductive rights, it indirectly supports

them by guaranteeing access to justice and free legal aid. In a developing country like India, many individuals especially women are unable to access legal recourse due to financial constraints lack of education or economic dependency. As a result, they often remain silent in the face of violations like forced sterilization, unsafe or unauthorised abortions, inadequate healthcare, or denial of reproductive choices. This constitutional provision mandates the State to provide free legal aid, empowering women to seek justice and assert their reproductive rights in court. Article 47 – Duty of State to Raise Level of Nutrition, Standard of Living and Public Health Article 47 of the Constitution of India enshrines the duty of the state to raise the level of nutrition, the standard of living of its people and to improve the public health.

Access to sexual and reproductive health is also considered a fundamental right. This Article directs the states to ensure the availability of healthcare services in adequate numbers, which are accessible to all- particularly those in geographically remote areas- while respecting cultural and religious beliefs. Restrictions on access to reproductive healthcare services, including contraception, pre-natal care, and safe abortion contribute significantly to maternal morbidity, unwanted pregnancies and unsafe abortion practises. Recognizing these challenges, the Government of India has undertaken multiple initiatives to address reproductive health issues. India, through the Family Planning 2030 partnership, seeks to broaden the contraceptive basket and ensures the timely, quality and affordable delivery of contraceptive services.

These efforts aim to reduce the incidence of unplanned and unspaced pregnancies. Additionally, the Government of India has introduced midwifery services20 across the country to enhance the reach of reproductive healthcare. Various Policies and schemes have been launched by both the Union and State Governments to address maternal and child health concerns. These include Janani Suraksha Yojna, Janani Shishu Suraksha Karyakram, Surakshit Matratva Ashwasan (SUMAN), LaQshya etc. focusing on reducing maternal and infant mortality while improving prenatal and postnatal care.

20 National Nursing and Midwifery Commission Act, 2023

Article 51 (C) And Article 253 – International Commitments and Domestic Obligations India is a signatory to several international conventions that recognize reproductive rights, such as the Convention on the Elimination of all forms of discrimination against women (CEDAW)21, the International Covenant on Civil and Political Rights (ICCPR)22, the International Covenant on Economic, Social and Cultural Rights (ICESCR)23 , the Convention on the Rights of the Child (CRC)24 and the Convention on the Rights of Persons with Disabilities (CRPD)25 . Article 51 (c) of the Constitution directs the state to foster respect for international law and treaty obligations, thereby imposing a constitutional obligation to align with these covenants and treaties. Article 253 empowers Parliament to Legislate for the entire country to implement International treaties and decisions made at global forums.

Together, these provisions ensures that the reproductive rights, widely recognised at the international level, are accessible to women in India. The International Conference on Population and Development (ICPD) held in Cairo in 1994 was a pivotal moment that shifted the global focus toward individual needs and the empowerment of women. The Cairo programme for action and the Beijing Declaration and Platform for Action laid down clear standards and commitments regarding reproductive rights and health. Further Articles 11, 12 and 14 of CEDAW26 obligate member states to take necessary steps to eliminate discrimination against women in the field of healthcare, ensuring their access to family planning information, counselling and contraceptive methods.

Article 16 of CEDAW emphasizes a woman’s right to decide the number and spacing between children and the right to access the education and information necessary to exercise this autonomy. Article 10 of CEDAW mandates that women be educated about family planning and overall family well-being. The Beijing Platform for Action asserts that it is a human right for women to make informed, voluntary decisions regarding their sexuality and reproductive health, free from coercion,

21 1979

22 1966

23 1966

24 1989

25 2006

26 Convention on the Elimination of all forms of discrimination against women, 1979

discrimination and violence. The CEDAW committee has consistently stressed the responsibility of states to ensure that women are not compelled to resort to illegal or unsafe abortions due to the unavailability of appropriate healthcare services. It is also called for proactive measures to prevent coercion in matters of fertility and reproduction. In the case of Alyne da Silva Pimentel Teixeira v. Brazil27, the CEDAW Committee held the Brazilian government responsible for the death of a woman due to negligent medical care during pregnancy. This decision emphasized the obligation of states to provide adequate healthcare services to protect women’s reproductive rights. To fulfil its constitutional and international obligations, the Indian Government has established various National Commissions.

The National Commission for Women (NCW) was established in 1991, under the National commission for Women Act, 1990, to reviews constitutional and legal safeguards for women, facilitates grievance redressal, recommends legislative reforms, and advises the government on policy matters affecting women. Among its many roles, the NCW actively works to protect and promote reproductive rights. The International human rights movement was further strengthened with the adoption of the Universal Declaration of Human Rights (UDHR) by the United Nations General Assembly on

10 December, 1948. Aligning with this global commitment, India established the National

Human Rights Commission on 12 October, 1993 under the Protection of Human rights Act,

1993. The NHRC plays a vital role in safeguarding human rights, including reproductive rights,

which are now globally recognised as essential components of human dignity and equality. Conclusion In India, women are often considered the inferior gender and due to patriarchal standards, they are subjected to various oppressive social norms. As a result, critical aspects of their lives- such as how they will live, whom they will marry, what and how much they will studyare frequently decided by others. Similarly, decisions regarding when they will have children, how many children they will have and when they will be sterilized are also influenced by external pressures. Although reproductive rights are recognised as a part of the Right to life, there are several lacunas in the legal and administrative systems that prevent women from freely

27 UN Doc CEDAW/C/49/D/17/2008 (2011)

exercising their reproductive rights. For instance, the dominance of husbands over their wives often compels women to engage in sexual relations without consent. Shockingly, such acts are not considered as rape unless the wife is under 18 years of age. The societal pressure to bear a male child significantly affects women’s physical and mental health. Many are forced to undergo multiple abortions and illegal sex determination procedures. Women are often blamed and traumatized for giving birth to girl child, even though the mother has no scientific role in determining the sex of the child. Furthermore, after delivering a girl child, mothers are often denied proper care and nutrition, adversely impacting the health of both mother and child. Women are also more likely to undergo sterilization for family planning, as male sterilization is wrongly perceived as a threat to masculinity.

Medically, however, male sterilization (Vasectomy) is more effective and carries fewer complications than female sterilization (Tubectomy). Government policies reflect this bias, focusing predominantly on female sterilization. The national average for female sterilization is 37. 9%, compared to only 0. 3% for male sterilization. Though laws and policies exist, extensive ground work is still needed to ensure the reproductive rights of women. The first step in this direction should be educating women and raising awareness about their rights. Awareness programs should be launched to inform women about use of contraceptives and these contraceptives must be made available in safe, accessible spaces. In India, one woman dies every 15 minutes due to inadequate healthcare and childbirth facilities.

While several schemes have been introduced to ensure the health of mothers and newborns- in line with international covenants and the Supreme Court’s recognition of the Right to Health as a part of the Right to Life28 - much remains to be done to make these rights a reality. Although abortion is legal under the Medical termination of Pregnancy Act 1971, access remains limited. It is estimated that one woman dies every three hours in India due to unsafe abortion practices. The Supreme Court has affirmed that a woman’s right to life and

28 Parmanand Katara vs Union of India, 1989 SCC (4) 286

reproductive autonomy takes precedence over the right to life of the unborn child. However, socio- economic conditions and financial barriers often prevent women from exercising this right. Child marriage, though criminalized, is still prevalent in many parts of the country. It has serious repercussions on the physical, mental and emotional health of girls and increases maternal morbidity and mortality. India has made notable progress in recognizing and securing reproductive rights, but a great deal still needs to be done. A “woman- centric” approach should be adopted in matters of sexual and reproductive health- one that acknowledges reproductive health as more than just the biological functioning of the womb. A woman must be trusted as an autonomous individual capable of making informed choices about her sexual and reproductive life.

In a sexual relationship, a woman plays a central role. In the absence of reproductive choice, all other rights risk becoming meaningless, as this choice shapes her entire personal and familial futures and underpins the exercise of all other Human rights.

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