By- Anna Rawat
Introduction
The reproductive rights cover a large aspect and make it a wide subject to be covered. It is the plethora that needs to be solved that the rights of pregnant women are similar to that of normal people. To answer such questions, there have been various conventions that have stated the importance of reproductive rights. Not only in international aspect but, major steps have been taken in India by bodies like National Human Rights Commission and National Commission for Women so that women are not deprived of their reproductive rights.
In human rights perspective, the most important right is the Right to health that has been obligated in various forms through Indian courts so that no right is violated and medical aid is provided to them. The right to surrogacy and the right to abortion play a major role. The reproductive rights cannot only be restricted to pregnancy but, abortion is also an important aspect. A woman faces several issues in the reproductive process and the coercion leads to unconsented pregnancy and abortion. All the aspects together have various issues and challenges that are creating hurdles to a woman’s pregnancy and reproductive rights. The hurdles are old enough to be removed easily and hence are time consuming. The process is time taking but, worth for the struggling women who are not able to enjoy their rights and live their lives freely and independently.
Reproductive rights: Human rights perspective
“Rights” are important to be noticed in every perspective. Reproductive rights have slowly been covered under the purview of human rights. The importance of putting reproductive rights in light is for the welfare of women as well as children. Unwanted abortion also takes away the lives of foetuses that leads to the infringement of the right to life too. Also, when new-borns are killed due to gender inequality, it leads to more heinous crimes. Human rights are the basic rights that protect people from being harassed unreasonably.
Various conventions and conferences have taken place to date to connect reproductive rights with human rights. Many major human rights are in respect to reproductive rights. Firstly, the Right to Life. The right to life is also enshrined in the Constitution of India and it gives protection to citizens and prevents fundamental rights from being infringed. The Convention of Belem do Para consists of articles that are concerning the reproductive rights of women. Article 4 of the Convention states the right of women in respect to life and choose the way to live. However, this is important as many times women are forced to reproduce against the will, and also the abortion is done in the same manner. This affects life and sometimes leads to death. Similarly, African Women’s protocol’s Article 4(1)[2] states that every woman shall be entitled to respect her life. According to this, no one else has the right to force pregnancy or any such perspective on a woman until she is ready for the same.
Secondly, the right to decide the number and spacing of children is also incorporated. This is essential because it initiates a step towards the maintenance of the population too. Article 16(1) of CEDAW ensures that the right to decide the number of children should be equally distributed between both genders. Women should get to exercise their rights to maintain their livelihood and health too. Principle 7.3 of the ICPD Program of action[3] states that all individuals should have the right to decide the number and spacing of children. The word “each individual” denotes females in specific so that they are not suppressed of their basic rights.
The right to privacy is another important right to be ensured in pregnancy. Para 7.45 of ICPD Programme of Action’s[4] reproductive and sexual rights mentions that every individual is subjected to the right to privacy in regards to pregnancy or sex. Confidentiality is a major aspect to be concerned with as pregnancy is still a delicate matter due to which many women suffer defamation and societal pressure. It depends on a woman if she wants to disclose her health or pregnancy-related issues.
Next, conventions of several countries such as Europe, Beijing, the USA, Africa, and several countries state the right to non-discrimination against women. Article 1 of CEDAW states that discrimination of any kind is not permissible and women have to have consented equally for pregnancy and these conventions have to be considered while violating and infringing the rights of women.
The right to be free from practices that harm women and girls is vital so that no kind of customs violate or make women suffer unreasonably. CEDAW’s Article 2(f)[5] empowers the state authorities to take actions against people or practices because of which women’s rights are infringed or have to suffer. Similarly, the Programme of action of various countries such as Vienna, Europe, Beijing, etc. provides the rights of women that are major and essential also, the actions that can be taken against the wrongdoers. The international documents work as a source of information and make states aware of their duties and responsibilities.
Further, women are very often subjected to inhuman behaviour and torture which is sometimes covered under domestic violence too. Also, education plays a vital role in making women independent and taking a stand for themselves. Education is an essential human right that cannot be infringed as every human has a right to get educated and gain information. Concerning pregnancy, a woman needs to know about her rights during pregnancy. Education paves a way to make a person well- informed. Article 10 of CEDAW[6] inculcates that state parties should take all the necessary steps to make a woman educated about pregnancy and family planning.
All the human rights that have a relation to pregnancy rights work to provide a woman and her child all the rights that are important for their well-being. It is pertinent to spread these rights more in order to prevent the violence that women suffer in regards to pregnancy. Human rights provide for necessities that can, make a woman live with pride and make herself independent enough for their reproduction rights.
National and international perspective
Over the years we have seen that the Indian courts have delivered various judgements in regards to women’s reproductive rights as it affects the both physical and mental health of a woman. This right is a part of Article 21 of the Indian Constitution. It is “Inalienable Survival Rights”. In the case of Devika Biswas vs. Union of India W.P(C), 81/2012 first time the court has observed and recognized reproductive rights as the essential rights. As we all know that the reproductive rights are the important rights of the human and the state is under the obligation to protect this right. The women shall be free from all sorts of discrimination and violence about their sexuality and reproduction. Any kind of violation of reproductive rights harm harms women’s health as it affects their capacity to become pregnant. Therefore, the protection of these rights is in the interest of natural justice and equality of women.
India was one of the first nations which framed the rules and policies that guaranteed access to abortion and contraception. India has the policy named India’s National Population Policy which accessed all kinds of contraceptives that includes voluntary female sterilization also. Abortion is also legal in India when it is done within 20 weeks of gestation and also where it is necessary to save the life of pregnant women, these abortion rights are guaranteed by the statute named Medical Termination of Pregnancy Act, 1971.
As per Article 21 of the Indian Constitution, the right to privacy is being guaranteed by the state to every person, therefore the women’s right to enjoy her privacy and other rights are also being protected by this article. It’s the women’s privacy that she can undergo abortions or can have a child. Every spouse has the same rights and liberties in regards to family planning. The reproductive rights if are violated and harms the women due to their capacity to become pregnant and also giving legal protection to them are challenging to provide gender justice. However, the Indian Constitution has recognized many of such rights as fundamental rights. Article 14, 15, and 21 includes the right to equality, non-discrimination and right to life which includes the right to health, dignity, freedom from torture and ill-treatment, and privacy.
India is a signatory to many international conventions like the Convention on the elimination of all forms of discrimination against women (CEDAW), the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); and the Convention on the Rights of the Child (CRC), all of which recognize reproductive rights. Therefore, the India is under obligation to adopt such conventions to protect all forms of human rights.
The reproductive rights of women have by recognized by the many countries and the United Nations were amongst the first to consider such rights as international human rights. There are several treaties and bodies which recognized this human right and made certain guidelines for their implementation.
The International Covenant on Civil and Political Rights (ICCPR) gives the Human Rights Committee a mandate to publish the comments and guidelines and directions for the nations to adopts such rights. To date there have been more than 40 such guidelines were published by the Committee upon reproductive rights as a human right, some such comments are explained as under:
1. Protection of the family, the right to marriage and equality of the spouses, 1990:
According to this marriage shall be not be entered into without the free and full consent of the intending spouses. The Covenant does not establish a specific marriageable age either for men or for women, but that age should be such as to enable each of the intending spouses to give his or her free and full personal consent. Secondly right to found a family implies, in principle, the possibility to procreate and live together. Whenever the States parties adopt any kind of family planning policies, they should be compatible with the provisions of the Covenant and should, in particular, not be discriminatory or compulsory. [7]Here we can see that the committee in the year 1990 has observed that women’s rights are to be considered by the states when they are implementing any policies in relation to family planning. Here the aim is to bring more equality for women in the society so that the state shall not make any arbitrary policies that may hamper the rights of women.
2. The equality of rights between men and women, 2000: –
Here the committee observed that every state parties shall give the necessary information on any measures taken by any State to help women to prevent unwanted pregnancies, and also it shall be the duty of the state to ensure that not women shall undergo any life-threatening abortions. The State parties shall make aware of the measures to protect women from practices that violate their right to life, such as female infanticide, the burning of widows and dowry killings. [8]
3. The right to the highest attainable standard of health, 2000: –
The right to health is not only restricted to live a healthy life, it includes freedom and life with dignity. The right to health must include the as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable level of health.
Reproductive autonomy v abortion and surrogacy
Reproductive autonomy is referred to the decision-making power of pregnancy that includes the preparation of a woman herself, her husband, and her family members too. This power enables a woman to choose the best for herself. However, there are various circumstances in which a woman does not has the power to decide and the family decisions. In such decisions, the life of a woman, as well as the child, is at risk. To prevent such incidents, reproductive autonomy plays an important to empower women to make their own decisions.
In today’s world, abortion is still a controversial topic. Women are still at some points not allowed to choose their abortion. They are sometimes forced to keep the child and to sometimes abort it without consent. This not only destroys the life of the woman but the fetal life too. In the case of St George’s Healthcare NHS Trust v. S, [9]it was decided that a pregnant person can refuse medical advice and intervention. It was a landmark case in regards to reproductive autonomy and it held that it is the right and power of the women to prevent medical intervention. This is important as sometimes women are subjected to unwanted abortions after the medical check-up.
Abortion is sometimes necessary for saving the life of a woman. However, in major instances, reproductive autonomy prevails. When reproductive autonomy and abortion are compared, both are interconnected and supplement each other. A woman cannot be subjected to forced actions if she has reproductive autonomy and the right to contradict the wrong actions.
Infertility has made women suffer unbelievable consequences and this has led to the concept of surrogacy. Surrogacy has till now not entered the free state in the society. Surrogacy is said to be practiced at low levels. However, surrogacy also stands as a reproductive right in which a woman can make decisions about her child. But this is sometimes considered an unnecessary use of reproductive autonomy.
Surrogacy stands in opposition to reproductive autonomy in various aspects. In India, infertility has been a persistent problem and concerning surrogacy, no law or authority existed. To look after the matter, assisted reproductive technology (ART) was drafted by the Indian Council of Medical research. However, the same is not backed up by any authority. The ART bill defines some basic rules and regulations concerning surrogacy which cover the aspects of life, health, family, personal space, etc. in this context, reproductive autonomy cannot be exercised. [10]
A better understanding of the whole process is needed to extract the knowledge so that no woman faces legal consequences. Some of the provisions of ART provide for guidelines like the age limit, legal marriage, steps to legal surrogacy, restrictions to adopt or surrogate a child in certain circumstances. However, some of the changes to the bill have been suggested by the Select Committee and that is suggested to be implemented to make the law more relevant and non- complicated.[11]
The complications in the ART are to be overcome to make surrogacy be backed up by an authority. It has become necessary to implement ART as the surrogacy law and to define reproductive autonomy in this respect to surrogacy. The authority will make it compatible to be obligated with the rules and regulations.
Both abortion and surrogacy stand in contradiction to reproductive autonomy. Abortion stands a positive aspect in some instances but surrogacy is tied with several chains. This freedom is necessary to procure. The rights of women are to be considered in connection to rules and regulations and also with valid restrictions.
Reproductive rights vis-à-vis right to health
The process of reproduction requires medical assistance and care of health to avoid risk to the life of the mother as well as the child. Right to health includes the right to mental as well as physical health. The right to health is incorporated under Article 21 of the Constitution of India. It also includes the right to reproductive health. In the case of Shruti Srivastava v Chandigarh Administration, it was held that a woman’s reproductive rights include the right to carry a child and raise them subsequently and these form the right to privacy, dignity, the health of a pregnant woman.
Several international conventions such as ICCPR, CEDAW also include the human rights that are necessary to be connected to reproductive rights. The conventions have mentioned health as a foremost priority of a woman. The Sustainable Development Goals and the Millennium Development goals also include reproductive health rights. A step was taken by NHRC in which a survey was initiated to check the Reproductive and Sexual Health of women so that necessary steps could be taken.
Sexually transmitted diseases are also included in the purview of RHR which means that sometimes sexually transmitted diseases also create hurdles in reproduction. WHO has defined sexual health as important for which proper education can be given to people so that no wrong steps are taken without the proper information? There should exist no inequality in spreading information about the sexual and reproductive health so that women get it equally.
The CEDAW Committee’s General recommendation 24[12] has recommended that prevention of unwanted family planning and sex education should be encouraged. Also. The CESR General Comment 13 has stated that the provisions to maternal health are core and have to be obligated and cannot be ignored in any circumstances. It is concrete, necessary, and targets towards healthy future. It is a step towards fulfilling the human rights of a woman in the reproduction stage.
Right to health is provided under the Constitution of countries which incorporates the right to reproductive health too. Reproductive health has been recognized in various conventions to make it a priority. For example, maternity leave was also not provided to women at a point in time. But its inclusion in-laws have made it mandatory as it is important for the health of a woman as well as the child. The maternity leaves are a part of the right to health in reproduction. The care that a woman needs at the time of reproduction, before and after it has to be considered in health concerns. The other major reason is also the marriage of girls at a young age and reproduction at a young age. This sometimes causes problems and makes a woman week which leads to abortion too. The crucial processes through which a woman goes hampers health at some or other aspects. Therefore, health is the foremost aspect to be considered in the reproductive stages.
Reproductive rights and Indian Courts
In India, pregnancy rights have been given considered through legislatures and also the precedents passed by courts. Precedents play a major role in shaping the legal future. There are various judgments in which reproductive rights have been considered and various views have been given. The role of Supreme Court and High Courts have been. Firstly, it is important to take care of the health of the pregnant woman and her medical facilities. In this regard, in the case of Laxmi Mandala v Deen Dayal Harinangar Hospital & ors[13] and Jaitun v. Maternity Home, Delhi High court held that no women should be deprived of the medical facilities at any stage of pregnancy irrespective of her economic and social condition and the right to health has to be exercised in such cases. The right to health is inalienable and cannot be taken away due to minor factors. This paved a way for women to get treated rightly and at the right place for their pregnancy and reproductive processes.
After a year, in the case of Sandesh Bansal v. Union of India[14], the High Court of Madhya Pradesh held that the violation of health rights of women at the time of pregnancy is a violation of rights incorporated in Article 21 of the Constitution. The government has to ensure no woman suffers unnecessarily and healthily survives pregnancy and child birth. The health facilities have to give to the pregnant women at every stage to ensure that none of their rights are infringed.
Further, one of the major issues is the coercive measures used for pregnancy. The same has been recognized by Supreme Court in the case Devika Biswas v. Union of India. it was held that moving beyond reproductive health, reproductive autonomy also plays a vital role in shaping the standards of reproductive rights. The coercive measure used on women for pregnancy has to be abolished through state policies so that no woman has the fear of getting a child without having knowledge and education and consent for it. it risks the life and the respect of women equally. Bodily integrity is also harmed due to same and leads to violence to the woman for getting pregnant and having a child without consent.
Along with forced pregnancy, forced abortion is also a major problem. The supreme court has recognized the abortion rights of women in the case Suchi Srivastava and anr. V. Chandigarh[15] Administration. It was held that the right to a child with own consent comes under the purview of Article 21 and cannot be ignored. A woman cannot be forced to abort a child which is carrying from her consent. This becomes the basis of gender discrimination and foetal deaths. The increasing rate of abortion in the country shows that abortion rights have to be obligated and practiced strictly so that no woman faces grievous allegations and behaviour.
Child marriage is also a crucial issue and has been recognized by the Madras High Court. In the case of M. Mohamed Abbas v. The Chief Secretary, it was held that child marriage should be prohibited and it infringes Articles 14 and 15 of the Constitution. The child marriage leads to early age pregnancy which causes complications. In the first place, most of the girls are forced into child marriage and secondly for the forced pregnancy at an early age. This causes the risk to life. The prohibition of child marriage will ensure that no woman has to suffer pregnancy as an obligation after marriage at an early age. The age limit is defined for marriage and they should be considered so that no harm or risk is caused to the women.
In these several judgments, the courts have paved a way for the future so that the reproduction rights do come in the purview of fundamental rights. Also, the right to privacy is included because it is the private matter of the woman and her husband, and making it public would lead to defamation of the woman. hence, the role of courts is vital to bring changes to the law and bring positive rights in purview for making reproductive rights an obligation.
Conclusion
The reproductive rights are still not progressing at a fast pace. It is important to consider that various conventions and conferences have been held in order to make the reproductive rights an obligation. The roadmap towards the better reproductive rights have been paved. Considering the national and international perspectives of the reproductive rights, India and other countries have implemented laws on surrogacy, abortion and pregnancy. The law is in force but, need specifications. For example, the A.R.T. implementation needs the back of an authority and law.
The challenges in the reproductive rights is to make the rights be implemented properly. The decisions given by the courts and the laws that have been enacted can only work if they are implemented properly. The issue is rights but, challenge is to implement them. If it is looked upon, possible efforts have been made for the reproductive rights and connecting them to the human rights too. However, the implementation is the root cause that needs to be corrected and worked upon.