Explanation of the Concept of Reproductive Rights in India

Does reproductive right merely mean a right to give birth to a child? The World Health Organization defines reproductive rights as “Reproductive rights rest on the recognition of the basic rights 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 right of all to make decisions concerning reproduction free of discrimination, coercion and violence”. 

In India reproductive rights are considered as a decision that is collectively taken by all the family members and not the decision of the woman who has to bear the child in her womb for nine months, go through continuous checkups, take care of her health for the sake of her child, and has to take care of the other family members too. In India even today there are clinics that need spousal consent to perform any kind of procedures- this impacts the right of a woman’s privacy and freedom of choice. In the Gender Inequality Index (GII) that ranks countries based on reproductive health, and empowerment of woman through education and politics, India was placed at 123 position out of 162 countries in 2019. 

Reproductive rights include right to abort, right to use contraceptives, right to not have children, to become a surrogate, to abstain from sexual intercourse, right to sexual autonomy and the most important one to not be stigmatized for one’s fertility. But in India even today abortion or any kind of birth control method is considered a taboo. 

The State of Women's Rights for Reproductive Health

In Justice K S Puttaswamy v. Union of India, 2012 C the Supreme Court of India highlighted the right to use contraception and to access abortion. In an attempt to answer the question whether a right to privacy exists as a constitutional right the Supreme Court looked into several of the underlying principles of privacy like liberty, autonomy and dignity.

In the Puttaswamy judgment the court stated that a women has the right to make choices in matters of reproduction as a part of personal liberty under Article 21 of the Indian Constitution. Justice Chandrachud referred to international case laws and tracked down how the use of contraceptives and abortion has a major role in a woman’s right to privacy and liberty. The most common birth control method is the female sterilization. In India even today there are women who want to stop having more than two children but are forced to give birth to more children because of in-laws and husband. There are families who do not believe in the modern birth control methods and insist on traditional ones. There are families who believe that stopping or restricting birth of a child is a sin. Though reproductive rights are specific to the couples but in India even today the whole family’s decision is considered. It is saddening to see that a woman who has to bear a child and take care of her health, take care of her family’s needs does not have a right to control her body, fertility and the choices to make for motherhood. This kind of a pregnancy might lead to different mental health issues and put the unborn child into danger.

Autonomy, the right to consent that is given directly by the person concerned with the need for health service and confidentiality is considered as the fundamental ethics for providing any kind of reproductive health services. It also means that a woman who is mentally competent to take her own decisions for her body and health can seek health services without any kind of authorization by a third party. 

The Medical Termination of Pregnancy Act nowhere deals with giving access to abortion of women who are mentally retarded. A nineteen year old mentally challenged orphan girl was raped in March 2009. In May 2009, she was found pregnant. The Multi-Disciplinary Medical Board that included a Psychiatrist stated that “she is physically strong to bear a child and give birth, but she is mentally weak so the stress and difference in health conditions in the course of pregnancy can give make her weaker.” The Punjab and Haryana High Court ordered for medical termination of pregnancy. But the Supreme Court gave a decision allowing the nineteen year old girl to bear and raise the child. C This case concluded by saying that the victim’s pregnancy cannot be terminated without her consent and doing this would not serve her best interests. Lastly, the court looked into the victim’s mental capacity whether she would be able to cope with the pregnancy, the court later said that the National Trust for the Welfare of Mental Retardation will look after the woman in question as well the child care. The apex court mounted an exception to ‘parens patriae’ jurisdiction exercised by the High Court, as a power subject to constitutional challenge on the ground of right to privacy. It was held that right to privacy includes within its ambit decisions regarding child birth. C This clearly shows that implementation of autonomy that gives right to women to take independent decisions for her body is still dependent on her entire family and society.

When women are not enlightened about reproductive health care it can result in unwanted pregnancy, unsafe abortions, death or injury as a result of pregnancy and childbirth. Men also need reproductive health care and their involvement can be a major step in protection of women’s reproductive health.