INTRODUCTION

Any good news? “Need doctor's number? “, “What are you waiting for?”, “Freeze your eggs”, “Too old to carry a child “, “Why only one? “, “Oh...pain is common during pregnancy, don’t put up a show! “

 Reproductive rights are still a battleground and childbearing is a duty and not a choice to most women. The words of South African satirist, philosopher and social critic Mokokoma Mokhonoana sounds true here, “Marriage is commodification of affection, copulation and reproduction”. The divinity associated with motherhood poses threat to many women. The struggle for reproductive self determination has special significance for women globally as 830 women die every day from pregnancy or child related issues[i]. Most of these deaths and injuries are entirely preventable, but unwanted glorification of life sacrifices for child and lack of choice makes it unattainable to woman. Discrimination and marginalization since childhood result in reproductive indecisiveness among women during adulthood.

The spectrum of reproductive rights includes the right of all to make decisions concerning reproduction free of discrimination, coercion and violence, right to education about sexually transmitted diseases and other aspects of sexuality, menstrual health and hygiene and protection from practices like female genital mutilation

The fight for reproductive rights is intense. Customs, culture, traditions, religion, moral and ethical reasons play a major role in heightening difficulty. Reproductive rights as an inherent significant part of human right were first recognized in the 1968 Proclamation of Tehran which states: “Parents have a basic human right to determine freely and responsibly the number and the spacing of their children”. Even though it was a non binding resolution, raising these rights in a global platform garnered attention.  

Being a multidimensional topic, reproductive rights have evolved over time and Courts made substantial contributions into this. Pioneers like Margaret Sanger and Mary Ware Dennet were early proponents of women reproductive rights[ii]. Despite the huge uproar from various sectors, their continued advocacy for women’s right to contraceptives and sex education has now made the discussion of birth control methods easier.  

The following are some of the landmark judgements in the field of reproductive rights which expanded its purview and changed its face globally over decades. As America is the birth ground of the battle against traditional and oppressive codes of conduct in matters of reproduction and contraceptives, it is important to trace the path through their legislations.

TRACING THE TRACK

Global Approach

In 1942 US case of Skinner v. State of Oklahoma[iii], Oklahoma’s Habitual Criminal Sterilization Act 1935 was challenged which empowered the courts to compulsorily sterilize a “habitual criminal “, a person who had been convicted for 3 or more times of crimes “amounting to felonies involving moral turpitude.” But the act excluded white collar crimes. The motivation behind such a provision was to eradicate the ‘unfit' from gene pool as many at that time believed criminality to be a genetic trait. The Court held that treating similar crimes differently violated the Equal Protection Clause of the 14th Amendment. The judgement opened wide discussions on the subject.

The ground-breaking US case of 1962, Griswold v Connecticut[iv]challenged the Connecticut Comstock Act of 1873 which made it illegal to use any drug, medicinal article or instrument for the purpose of preventing conception. Violators were fined with less than 50 dollars or imprisonment of not less than 60 days and not more than a year, or both. The appellants in this case, both licensed physicians, were arrested for giving information, instruction, and medical advice to married persons as to the means of preventing conception. They examined the wife and prescribed the best contraceptive device or material for her use. Fees were usually charged, although some couples were serviced free. They were convicted but on June 7, 1965, the Supreme Court issued a 7–2 decision in favour of Griswold that struck down Connecticut’s state law against contraceptives stating that marital privacy is an implied right under provisions of Bill of Rights.

The increase in cohabitation before marriage as a consequence of the sexual liberation movement[v] in America during the 20th century paved way for many legal complications. In the 1972 case of Eisenstadt v. Baird[vi], US Supreme Court struck down the Massachusetts law which prohibited distribution or sale of contraceptives to unmarried individuals. Justice Brennan held that if right to privacy means something, it is the right of individual, married or single, to be free from unwanted government intrusion into matters so fundamentally affecting a person such as the decision whether to bear or beget a child.

Questions regarding abortion rights are still debated as there persists a number of ethical and moral issues associated to it like vitality of prenatal life. In 1973 case of Roe v. Wade[vii],  the US Supreme Court heard the plea of Jane Roe, an unmarried pregnant woman who challenged the Texas law which banned all but life saving abortions. The Court finally held that forceful continuation of pregnancy can lead to physical and mental health issues, financial burden and social stigma. It was declared that the State cannot regulate the abortions until the third trimester where the state's interest to protect the potential human life outweighs women’s right to privacy and abortion.  

Globally, the struggle and discussions on abortion rights are still in motion. A recent revolt was witnessed by Ireland. On October 2012, Savita Halappanvar, a 31-year-old Indian woman residing in Ireland died due to septic miscarriage after her request for abortion following an incomplete miscarriage was denied by the hospital authorities as the Irish law under influence of Catholic Church forbade abortion when foetal heartbeat is present. Savita was 17 weeks pregnant at that period. Her death triggered protests in Ireland calling for a repeal of 8th Amendment of Constitution of Ireland which prohibited abortion in most cases.  It then led to the 36th amendment of Ireland Constitution in May 2018 which struck down the 8th amendment. On December 20, 2018, the Health (Regulation of Termination of Pregnancy) Bill was signed into law. The act came into force on January 1, 2019.

In 2021, the Texas Heart Beat Act[viii] caused a huge uproar globally. It bans abortion on detection of foetal heartbeat which occurs usually within 6th week of pregnancy which is when many women detect their pregnancy. The law has been difficult to challenge in court because of its novel enforcement mechanism, which bars state officials from enforcing the law and instead authorizes private individuals to sue anyone who performs or assists a post-heartbeat abortion. This is regarded one of the most aggressive and barbaric anti abortion legislation.

Indian Approach

In India, the CEDAW was ratified by on 9th July 1993 which affirms reproductive rights of woman. Since the enactment of Medical Termination of Pregnancy Act in 1971, abortions are legally permissible in India. But the approach of India to reproductive rights have emphasised on population control rather than improving individual autonomy and removing structural barriers to the to reproductive health services. In Suchita Srivastav v. Chandigarh Administration[ix] the Supreme Court held that a women’s right to make a reproductive choice is a part of personal liberty guaranteed under Article 21 of the Constitution. It was held that the State must respect the personal autonomy of a mentally retarded woman with regard to decisions about terminating pregnancy.

However, in the landmark judgement of Vinod Soni v. Union of India[x], the Court strictly upheld that right to personal liberty cannot expand to any extent of imagination, to curtail coming of existence of a female or male foetus. Women’s right on their body will not overweigh the State's measures against sex selective abortion.

In Anjali Bhan v. Ajay Kumar Bhan[xi] it was held that wife undergoing abortion without consent of husband amounts to mental cruelty and is recognised as a ground for divorce.

Laxmi Mandal v Deen Dayal Harinagar Hospital[xii] and Jaitun v. Janpura Maternity home[xiii], were two writ petitions simultaneously heard by the Delhi High Court. In both cases, the parties were denied timely treatment during pregnancy complications at hospitals due to their poverty.

The Court upon hearing the cases held that reproductive right includes proper and timely reproductive health treatments. In response to two petitions, the Government of India stated that the responsibility for implementation of the schemes was essentially with State Governments. No pregnant woman in need of immediate care should be turned away from Government hospitals due to inability to prove BPL status. This case sheds light on the potential scope of the right to life contained in section 9 of the Victorian Charter with respect to reproductive rights and the right to health and nutrition during and following pregnancy.

Sterilization is one of the most widely used contraception in the world. But it is very important to ensure that it is done only after full, free and informed consent of the party. In Ram Kali v. State of Haryana[xiv], the plaintiff admitted that she was operated upon her consent. But she was never informed that it would result in failure nor was she informed about precautions to be taken after operation. The Court held that not only mere consent, but the party should be informed in writing of chances of failure to obtain assent.

Sterilization operations are non therapeutic operations which warrants extra care and caution as there are chances of damage to a person who was fit and fine before the operation. In Achutrao Khodwa v. State of Maharashtra[xv], it was held that negligence during sterilization operations like leaving of foreign material in body resulting in death is liable for punishment. Improper performance of operations resulting in unwanted pregnancies is liable for compensation as held in Shakuntala Sharma v. State of Uttar Pradesh[xvi].

The Medical Termination of Pregnancy Amendment Act 2021[xvii] has raised gestation limit for abortions to 24 weeks for special categories of pregnant women such as such rape or incest survivors. It has for the first-time recognised abortion rights of unmarried women in India. Women can now terminate unwanted pregnancies caused by contraceptive failure regardless of their marital status. However, criticism has been cited on the need of a doctor's approval for the same as there are high chances of conscientious objection from a medical practitioner on this procedure if it falls beyond his belief system.

THE ROAD AHEAD

In a patriarchal society where all except woman have a right on her body there is still a long way to go. Our Courts have pronounced many important judgements to protect our interests and rights, but it is we who have to keep asserting for its implementation and accessibility to all. Many of it are unknown to people. Change in perceptions through awareness is the first step to be taken. As American reproductive rights activist Faye Wattletton rightly said “Reproductive freedom is critical to a whole range of issues. If we can’t take charge of this most personal aspect of our lives, we can’t take care of anything. It should not be seen as a privilege or as a benefit, but a fundamental human right” .

[i] Max Roser and Hannah Richie, Maternal Mortality, OUR WORLD IN DATA BLOG, https://ourworldindata.org/maternal-mortality

[ii] The Fight for Reproductive Rights, US HISTORY BLOG, https://www.ushistory.org/us/57b.asp

[v] Tom. W. Smith, A Report- The Sexual Revolution?, Vol 54 No. 3, THE PUBLIC OPINION QUARTERLY, https://www.jstor.org/stable/2749376?seq=1

[vii] 410 U. S 113 (1973)

[ix] AIR 2010 SC 235

[x] 2005 Cri. L. J 3408

[xi] AIR 2011, J&K 54

[xii]  [2010] W. P ( C) 8853/2008

[xiii] [2010] 10700/2009

[xiv] 2003 ACJ 752

[xv] AIR 1996, SC 2377

[xvi] 2001 ACJ 620

[xvii] The Medical Termination of Pregnancy (Amendment) Act 2021, https://egazette.nic.in/WriteReadData/2021/226130.pdf

 

About the Author: This post is prepared by Aameena Rafeek, Law Student from Government Law College, Ernakulam. She can be reached at aaminarafeek19@gmail.com

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