Bodies, Sovereignty, and the Law: Reproductive Rights of Women in the 21st Century. – Neelam D

Bodies, Sovereignty, and the Law: Reproductive Rights of Women in the 21^st Century.

Abstract

The 21^st century still struggles with the question of women’s reproductive rights. This article explores the intersection of bodily autonomy, legal frameworks, and the concept of sovereignty for women in making decisions regarding their reproductive health. It examines how legal systems can either empower or restrict women’s control over their bodies, analyzing the impact on issues like abortion access. The article delves into ongoing debates about the balance between individual rights and societal interests, highlighting the tension between personal sovereignty and legal regulations. By examining various legal advancements and challenges, the article sheds light on the ongoing struggle for women to have full control over their reproductive choices in the complicated setting of the 21^st century.

Introduction

“Human rights are women’s rights, and women’s rights are human rights. Let us not forget that among those rights are the right to speak freely and the right to be heard.” – Hillary Clinton.

Reproductive rights are legal rights and freedoms relating to reproduction and reproductive health that vary amongst countries around the world. The World Health Organization defines reproductive rights as follows:

“Reproductive rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing, and timing of their children and to have the information and means to do so, and the right to attain the highest standard of reproductive health. They also include the right of all people to make decisions concerning reproduction free of discrimination, coercion, and violence.”

Reproductive rights of women are related to multiple human rights, including the right to life, right to be free from torture, right to health, the right to privacy, the right to education, and the prohibition of discrimination. Women in India don’t have many rights when it comes to their bodies and health. Important things like birth control and safe menstruation are often ignored, with the focus being on selective issues like child marriage, sex selection, etc. Women have the right to make decisions about their bodies, including whether or when to have children. This includes the right to access contraception, the right to terminate a pregnancy (legally), and the right to choose when and how to become a parent. The right to reproductive autonomy is enshrined in international human rights law, including the Universal Declaration of Human Rights and the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW). When India passed a liberal abortion law in 1971, concerns about women’s rights weren’t the primary motivation. Rather the Medical Termination of Pregnancy Act, 1971 (MTPA) was motivated by fears about population growth in India and a part of measures targeted at reducing the population growth rate. Women’s bodies were thus, at least partially, a means to achieve the State’s end of population control. To the extent that women’s concerns were part of the assessment, the State was alarmed at the number of women who died trying to access abortions illegally. Rather than centering women as competent decision-makers whose reproductive decisions must be respected and enabled, by providing access to safe abortions, the State stepped in to protect women from exploitative medical providers. This measure, while intended to protect women, reveals a protectionist bias that contradicts their status as rightsholders. 

It was in 2009 that the Supreme Court of India issued a landmark judgment in Suchita Srivastava & Anr v. Chandigarh Administration: “A woman’s right to make reproductive choices is a dimension of personal liberty under Article 21 of the Constitution of India. Reproductive choices can be exercised to procreate as well as to abstain from procreating.” The Court hence acknowledged the right of a disabled pregnant woman to refuse a forced abortion, based on her fundamental rights to privacy, dignity, and bodily integrity. Similarly, the Delhi High Court in the Laxmi Mandal Case affirmed that the “inalienable survival rights” under Article 21 include the reproductive rights of the mother. These two landmark judgments formed the bedrock of India’s reproductive rights jurisprudence. 

A person owns their body and has complete rights over it and that person alone should be making choices concerning their body. The consequences of an unwanted pregnancy on a woman’s body cannot be dismissed or downplayed. The fetus relies on the mother’s body for survival and nourishment. The biological process of pregnancy transforms a woman’s body in countless ways, with several effects lasting for life. Further, there is a risk of complications that may pose a threat to the woman’s life. In India, unsafe abortions are a critical public health issue. The United Nations Population Fund’s State of the World Population Report 2022 highlights that 67 percent of abortions between 2007 to 2011 were unsafe, contributing to this being the third leading cause of maternal mortality. Nearly eight women tragically lose their lives each day due to unsafe abortions. A report titled “Seeing the Unseen: The Case for Action in the Neglected Crisis of Unintended Pregnancy”, has found that 121 million unintended pregnancies occur every year globally, an average of 331,000 a day. One in seven unintended pregnancies occurs in India. These unintended pregnancies and abortions are intimately linked with the country’s overall development. In India in 2015-2019, there were a total of 48,500,000 pregnancies annually. Out of these 21,500,000 pregnancies were unintended and 16,600,000 ended in abortion. Unintended pregnancies severely affect women, especially if the woman is young and vulnerable. Unintended pregnancy among adolescents represents a significant public health challenge. Factors such as age, caste, religion, education, wealth, knowledge, and awareness, broadly impact unintended pregnancies in socially and economically less empowered states.

Reproductive rights are built on two key principles: Privacy and Equality. Privacy acknowledges the deeply personal nature of reproductive choices and how they shape who we are. Equality emphasizes the historical and ongoing denial of these rights to certain groups based on their identity. As reproductive rights progressed, the concept of ‘life’ broadened in the legal interpretation. It came to involve not just physical existence but also mental and physical well-being. This shift originated from the recognition that the Constitution protects life in its fullest sense, not just basic survival. Courts increasingly interpreted the Medical Termination of Pregnancy Act in this light, prompting a legislative amendment in the year 2021. This amendment expanded access to abortion by allowing it to more grounds and extending time limits. However, the law still faces limitations, particularly in its reliance on medical professionals as the primary decision-makers for abortion access. 

While progress has been made, challenges remain. A recent judicial trend suggests a growing emphasis on the state’s role in protecting potential fetal life. This is evident in the landmark case of Suchita Srivastava, where the Supreme Court of India, acknowledged a compelling interest in protecting the expected child, potentially leading to restrictions on women’s reproductive rights. However, this approach contrasts with India’s historical abortion debate. Unlike the United States of America, where fetal life has always been central to the debate, the Indian context has largely sidelined this aspect. Notably, during the legislative discussions surrounding the Medical Termination of Pregnancy Act in 1971, concerns about fetal life were minimal, with only two objections raised. The act’s passage, despite these objections, further highlights the previous legal stance that abortion does not inherently violate the right to life. India’s constitutional landscape of reproductive rights presents a complex picture. While some High Courts prioritize a woman’s right to life, even in pregnancy termination decisions, others introduce a balancing act. In these latter cases, the potential child’s viability becomes a factor, with the “right to life of the fetus” potentially outweighing the mother’s “mental trauma.” This trend marks a shift from a past where the fetal figure held less weight in such legal considerations. Protecting reproductive rights requires careful legal and constitutional engagement with fetal interests, starting with whether they are, at all, a legitimate aim for the State to pursue. Even if they are, considering fetal interests need not mean the annihilation of women’s reproductive rights. 

The silence around unsafe abortions, maternal deaths, use of contraceptives, and reproductive rights still deafens independent India. Most women cannot freely make choices about their bodies. From a young age, girls are bombarded with societal expectations on how to behave, dress, who to interact with, etc. This constant pressure to be the ‘perfect’ girl shapes them into women who still grapple with these limitations. We see this reflected in how people often try to stop harassment of a woman by saying, “Would you be okay if it had happened to your mother or sister?” or “She’s someone’s daughter & sister”. This implies that women inherently deserve respect only in relation to men, not as individuals in their own right. By being confined to domestic roles and having their bodily autonomy dictated by others, women are denied the agency and respect they deserve.

Furthermore, inconsistent judgments add to the general lack of clarity surrounding the conditions in which a woman may legitimately terminate her pregnancy. Several rulings have not permitted the pregnant woman to get an abortion after the 20-week mark, even where medically proven problems existed. In the case of X v. Union of India, the petitioner a 27-year-old pregnant woman filed a writ petition seeking an abortion of her 26-week-old fetus, on the grounds that she already has two children and was unwilling to continue with her pregnancy due to physical, mental, and financial reasons. Her current pregnancy came up despite her using contraception. The petitioner suffered from post-partum depression and had been undergoing treatment for it for over a year. The strong medicines prescribed to her would affect the fetus’s health. The woman had also conceived despite adopting the Lactational Amenorrhea method which provides 95 percent protection from pregnancy. An abortion could not be granted keeping in mind that the upper gestational limit of 14 weeks had been crossed. The Court emphasized protecting the fetus (which is yet to be born) over the pregnant woman who is currently in distress and wishes to terminate the pregnancy.

Similarly, the Supreme Court of India had turned down a 37-year-old woman’s request to terminate her 26-week-old fetus afflicted with Down syndrome (which was detected at 22 weeks) citing the 46-year-old Medical Termination of Pregnancy Act, which prohibits a woman from aborting a pregnancy if it crosses 20 weeks. The couple already had a differently-abled child in the family and thus knew the hardships of bringing up such a child. Hence, they wanted an abortion after receiving the confirmatory reports. In this woman’s case, a panel of doctors from Mumbai’s KEM Hospital held that the baby had a chance of survival and that there was no physical risk to the mother. While acknowledging the woman’s difficult situation, Supreme Court Justices S. N. Bobde and L. N. Rao, ultimately denied her abortion request. Their decision, however, was framed with an air of regret, citing the fetus as “a life they cannot disregard.” The Court’s reasoning about Down syndrome, however, relied on unsubstantiated claims of “everyone knowing” their limitations, rather than on the abundance of scientific evidence readily available on this topic. Out of 26 million births annually, 2-3 percent are affected by severe congenital anomalies, some even leading to the demise of the fetus. While early detection is possible, confirmation often comes later, leaving families emotionally and financially unprepared. Parents of chronically ill children suffer from various issues and social strain. In a nation with limited access to affordable healthcare and restrictive abortion laws, these families face a difficult battle. Raising a child with special needs can be expensive as well, with medical costs for Down syndrome being significantly higher, especially when combined with any other defects. This financial burden adds to the emotional toll. Given India’s stance on abortion and its emphasis on the inclusion of children with Down syndrome, it is crucial to invest in comprehensive support services that promote the mental and physical well-being of these special needs children. 

A woman’s experience of pregnancy and childbirth is a fundamental aspect of her life and identity. Control over her reproduction, then, becomes crucial. When the State or any other entity or any individual restricts her access to contraception or abortion, they infringe upon the woman’s right to govern her body. This infringement can have major physical, emotional, and psychological effects and consequences. Additionally, discriminatory principles like consent of the spouse being an informal but imperative condition to obtain reproductive health services explicitly sabotage women’s reproductive autonomy. Legal protection of reproductive rights as human rights is essential. Each country, however, has its restrictions and exceptions when it comes to abortion rights. Many countries, particularly those led by conservatives, have expressed interest or initiated legislation to limit abortion drastically. 

The apex court of the United States of America, in a significant ruling in Roe v. Wade in 1973, two years after India legalized abortion, recognized for the first time that the constitutional right to privacy is not so shallow that it does not even grant women the autonomy to decide the termination of their pregnancy. Some countries even go beyond the 20-week limit with laws in twenty-three countries such as Canada, Germany, Vietnam, Denmark, Ghana, and Zambia allowing for an abortion at any time during the pregnancy at the request of the mother. The reasons could be either social or the evidence of fetal abnormalities. India’s legal framework for abortion rights, while not without its limitations, has shown a positive trajectory. The Medical Termination of Pregnancy Act’s recent amendments, recognizing single women and adjusting time limits, reflect progress. Though India lags behind the US in recognizing privacy rights, the 2017 judgment brings abortion under its umbrella. Despite these delayed developments, India is moving in the right direction. The focus should now shift to ensuring widespread access to safe and legal abortions, crucial for both gender equality and public health. The legal system, government policies, and civil society activism all play a vital role. Court rulings upholding abortion rights pave the way for future legal battles securing reproductive autonomy, especially for marginalized communities. Prior to the 18th century, global views on reproduction centered on control rather than individual choice. Women lacked autonomy over their bodies, with spouses and the government dictating decisions regarding their bodies. Legal frameworks for abortion were not present, they were replaced by population control measures. The 19^th century saw a clash of ideologies. One side condemned abortion as immoral and risky when practiced outside the medical system. The other championed women’s right to have complete control over their bodies, advocating for legal abortion access under certain specific circumstances. This debate fueled the 20th-century legislation, with many countries adopting abortion laws reflecting a compromise between these opposing views. While specifics vary, most countries permit adoptions to save the mother’s life. 

According to the World Health Organisation (WHO), the legality of abortion across the world has little to no effect on abortion rates throughout the world. Legal or not, abortions can, will, and do take place. The legality, however, does affect how safe these abortions are. Women who do not have access to legal abortion will turn to illegal or “homemade” abortion options, which are much riskier, more dangerous, and less effective than the legal option conducted by a medical professional in a clinical setting. Many countries such as Andorra, Aruba, the Dominican Republic, Iraq, Jamaica, the Philippines, the Republic of Congo, Senegal, Laos, etc have completely outlawed abortion. 

A stark gap exists between commitment to women’s health and the reality. Despite the obligations, violations of women’s sexual and reproductive health and rights are frequent. These include the denial of essential services, poor quality care, forced procedures, and harmful practices such as Female Genital Mutilation (FGM), and early marriage. In patriarchal societies, a woman’s worth is frequently tied to her ability to bear children. This pressure often manifests in early marriage and frequent pregnancies, sometimes driven by a preference for a male child. This relentless focus on reproduction disregards women’s health, leading to devastating and sometimes fatal consequences. Furthermore, the burden of infertility often falls solely on the woman, leading to social isolation and the abuse of human rights. Empowering individuals to make informed choices about their reproductive health is central to the concept of reproductive rights. The Indian government supports this through family planning programs offering contraceptives, counseling, and family-size planning services. Comprehensive and accurate sex education must be given to children once they reach the right age. It equips people to understand their bodies, make healthy choices, and prevent sexually transmitted diseases. Beyond bodily autonomy, reproductive rights encompass protection from violence that restricts reproductive choices. This includes forced pregnancies and being coerced into reproductive decisions. These rights extend to the right to maternity benefits and support during pregnancy and after childbirth. Efforts must be made to address health disparities that affect marginalized and underserved communities, ensuring that reproductive rights are accessible to all women, regardless of their social, economic, or regional backgrounds. 

India has a long and traumatic history with the imposition of forced sterilization on both men and women. Launched in 1952, India became the global forerunner in establishing an official family planning program. The initial focus was on improving maternal and child health, but over time, the program shifted toward population control and lowering birth rates. While targets were initially absent, the 1976 National Planning Policy introduced them during the Emergency Period (1975-76). This policy also empowered state legislatures to enact laws permitting compulsory sterilization. Notably, 6.2 million Indian men were forcefully sterilized in just a year, with thousands dying from botched operations. Some Indian states continue to run these harmful programs in underdeveloped rural regions. India carries out 37 percent of the world’s sterilization, with 4.6 million women sterilized in 2012 alone. Only 58.7 percent of women who had undergone sterilization in 2019-21 said they had been informed about the possible side effects or problems of the method. Nearly 5 percent of women who had undergone sterilization procedures said they regretted it. Regret rates vary greatly between states with Ladakh, Meghalaya, and Manipur reporting the highest shares of female sterilization regret.

Women’s reproductive rights are fundamental human rights that must be respected, protected, and fulfilled. Women’s bodies are sites of sovereignty that must be recognized and respected. The law must prioritize women’s reproductive autonomy, dignity, and human rights, rather than restricting or denying them. Only then can we ensure that women’s bodies are truly their own and that they have the freedom to make choices about their own lives, free from coercion, judgment, or harm. The conversation on reproductive rights extends beyond abortion. Access to affordable and effective contraception is crucial. Additionally, Assisted Reproductive Technologies (ART) raise new questions about who has the right to reproduce and who controls the process. Issues of surrogacy, egg donation, and sperm donation require legal frameworks that balance the rights of all parties involved. The fight for reproductive rights continues through tireless advocacy and activism. Women’s rights organizations, healthcare providers, and individuals i.e. citizens play a vital role in raising awareness, lobbying for change, and providing support to women seeking reproductive healthcare. 

Conclusion

The fight for reproductive rights has come a long way since the early 2000s. Back then, the concept of women having autonomy over their bodies and making informed reproductive choices was less clear. However, the journey is far from over. Societal acceptance of female contraception remains a significant hurdle. Changing these attitudes is just as crucial as legal reforms if women are truly to enjoy the full range of reproductive rights guaranteed to them. The future of reproductive rights remains uncertain. Technological advancements in contraception and reproductive technologies also demand ongoing legal and ethical considerations. Ultimately, achieving true reproductive justice requires a global shift in mindsets that recognizes women’s right to bodily sovereignty and freedom over their reproductive choices. Women’s bodies are not vessels for the state, religion, or patriarchy to control. Only through the unwavering protection and expansion of reproductive rights can we ensure that women’s bodies are truly their own, free from coercion, judgment, and harm. It’s time for women to reclaim their bodies, their sovereignty, and their rights.