A COMPARATIVE STUDY OF REPRODUCTIVE RIGHTS IN INDIA AND USA: AN ANALYSIS

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INTRODUCTION

The arguments concerning reproductive rights is solely based on the two theories of “Libertarianism” and “Utilitarianism”. The primary cause of concern in a debate with reference to reproductive rights involves the “conflict between personal choice and community interest”[1]. For example, on one hand, the debate on abortion in the USA primarily comes down to the war between community’s religious belief and the interest of State in protection of a potential life whereas, on the other comes the “mother’s right to reproductive autonomy”[2]. Involuntary sterilization is another instance wherein an individual’s “right to procreative choice” is considered secondary as compared to the eugenics and population control sort of baseless concerns of the community. The utilitarian theory on one hand stands in support of such cutbacks with the justification that such limitations help in attaining maximum utility. The libertarian theory on the other argues that such restrictions violate an individual’s “right to personal autonomy”. Not very distinct to the United States, the debates revolving around reproductive rights in India form the basis of contemporary legal debates followed by some fresh modifications reflecting similar fundamental “jurisprudential conflicts”. However, in case of India, the matters relating to reproductive rights and reproductive autonomy have not received sufficient attention. Contrasting to this, the arguments on reproductive rights of an individual have a well-established history in the western culture, the United States in particular. This provides for better relative standards for examining the Indian scenario in opposition to other countries. It provides for a more legitimized comparison as the Indian judiciary has constantly referred to the American jurisprudence for framing and interpreting the Indian Constitution. A critical analysis of position of the United States in reproductive autonomy provides a clear direction to the argument in terms of State Policy along with, Judicial and Constitutional approaches. Therefore, the core paper primarily focuses on the contrasting attitudes of the legal systems and policy makers towards reproductive autonomy in the two nations, that is India and USA.

The initial part of the paper deals with the extent to which the Indian and American Constitutions consider and recognize reproductive rights for its citizens. Following to this, the next part addresses the varying State policies in the two countries. The third part of the study deals with differential judicial attitudes regarding reproductive autonomy in India and the United States. The last and concluding part of the paper focuses on summing up the debates on reproductive autonomy and highlights the need to modify State policies and alter Judicial point of views in each scenario. Only those aspects of the US arguments on reproductive rights have been addressed which are relevant in the Indian context.

CONSTITUTIONAL OUTLOOK ON REPRODUCTIVE CHOICES

Reproductive choices are choices directly impacting the involved person(s) with greatest bearing. Unlike marriage and other facets of family life having restricted effect on the community, it is a field generally given to individual decision making. Therefore, reproductive choices are ordinarily a component of “right to privacy” or “right to be left alone”. The “Right to procreative choices” has not yet gained an explicit recognition either from the US Constitution or even the Indian Constitution. The US Constitution provides for an autonomous constitutional status to the “Right to Privacy” taking into consideration the element of ‘liberty’ safeguarded by the “Due Process Clause”[3]. The US Constitution provides for a broader view and includes several other numerous rights under this. The Right to Privacy has gained a broad enough view to safeguard the “right to procreative choices” from unreasonable and unnecessary State interference. This was subsequent to the Supreme Court’s decision in the Griswold v. Connecticut case[4].  The Courts, in consequent decisions relating to abortion laws have invalidated parental and spousal consent, etc, on the basis that it violates an individual’s right to privacy[5]. Therefore, the discussions relating to the “Right to Privacy” or the “Right to reproductive choice” is no longer a topic for controversy in the contemporary times.

The counterpart to the Due Process Clause of the US Constitution is “Article 21[6]” of the Indian Constitution. It makes use of the term “Personal liberty” in place of “liberty”. The policy makers were of the intention to restrict and narrow the safeguards available by the legislation to only certain liberties relating to life and liberty of an individual[7]. The aim has always been to identify the limitations inspired by the State interest solely. Lately, the main motive has not been the dispute between State interests and privacy, but the collision between right to privacy and other individual rights under the Indian Constitution. The right to reproductive choice emerging from the right to privacy has already taken its root in the United States. However, it is yet to be established as a Fundamental Right in India. Therefore, it can be concluded that there is scope for extension of safeguard in the field of reproductive rights in India.

STATE POLICY REGARDING REPRODUCTIVE RIGHTS

Most of the affairs concerning reproductive rights have already been argued in the United States. However, it is yet to be recognized in India. The comparison of State Policies of the two countries would be with regard abortion, since it is a widely debated topic in both the India and U.S.

State Policy in the U.S.

The United States granted the right to abort with the consent of the pregnant woman. The exception to the rule was that it was allowed only at stages prior to ‘Quickening’. The study of abortion laws in the U.S. indicate that State interference has been inspired fundamentally by “lobbying of strong religious groups”. The State has also caused hindrances on justification of health concerns that is unrestricted abortion could pose significant threats to the life of mother or child. The legalization of abortion was a result of intense campaigning bt vocal feminist organisations. Therefore, the right to abortion is viewed as a female’s right to liberty receiving legal recognition and acceptance in the year 1973[8]. This was after the Supreme Court abolished “Anti-abortion Laws”, on the rationale that it violated a woman’s right to reproductive choice, which ultimately violates one’s right to personal liberty.  

State policy in India

Section 312 of the Indian Penal Code, 1860[9] declares of the Indian Constitution declares abortion to be a criminal offence. Apart from this, a separate legislation was passed by the Parliament in the year 1971, that is “Medical Termination of Pregnancy Act (M.T.P. Act)”[10]. This Act provides for an exception to Section 312 of the Indian Penal Code and permits to undertake abortion. However, it allows for abortion under cases wherein the continuance of pregnancy will cause “grave injury to mental and physical and health”. The reason for this is the anguish caused due to failure in planning a family. The exception to the explanation is that the Act takes into consideration the anguish caused to “only married women” and does not recognize any sort of anguish caused to “an unmarried woman with unwanted pregnancy”. This suggests that the Act was inspired by the need to encourage abortion as a “family planning tool”. Therefore, the limited legislation available in India is a result of fallout fears among the Indian policy makers. Further, the decision to abort is not given to the mother. It is on the satisfaction of the Medical practitioner(s) that the basis mentioned in the Act is fulfilled, which is a compulsion under the given statute[11]. This proves the debate true that the Act was not envisioned as a way to help woman with their reproductive choices. Instead, provides veto power to a third party that is the medical practitioner. Hence, it can be concluded that abortion laws in India are used as a means for keeping a control on population growth and not as a tool for woman’s right to control and look after her health and well-being.

REPRODUCTIVE AUTONOMY: A COMPARISON OF JUDICIAL ATTITUDES IN THE U.S. AND INDIA

The primary focus of this section is to provide a comparison in the judicial attitudes relating to reproductive autonomy in the U.S. and India based on two grounds that is abortion and involuntary sterilization.

Abortion:

 The issues relating to abortion has been in controversies since the early seventies. The debates regarding abortion comprise of two main colliding interests that are the woman’s right to make procreative choices and foetus’s right to life. In the last few years, the Courts in the U.S. have been confronted with several cases challenging the constitutionality of the legislations seeking to impose limitations on abortions. The recent issue has been the collision of the State’s interest in limiting abortion keeping in mind the religious beliefs and other health concerns. But most importantly, the mother’s right to make independent procreative choices.

On the other hand, arguments focused on the right to abort have been largely non-existent in India. The various aspects of reproductive rights that have already captured recognition in the U.S. are yet not a topic of controversy in India. The attitude of the Indian Judiciary portrays an absolute “disregard to a pregnant woman’s right to liberty and privacy and her right to make independent reproductive choices”.

Involuntary sterilization: Breach of Reproductive Rights

State intervention in cases of abortion and involuntary sterilization are highly distinctive in nature. Involuntary sterilization is inspired by issues as varied as eugenics and control of population. Involuntary sterilization is therefore, the most severe form of breach of reproductive rights. The reason being that it has an “irreversible impact on the right to reproductive choices”. The U.S. has a long history with forced or involuntary sterilization in spite being one of the oldest democracies in the world. The first or the oldest case dealing with the issue of forced sterilization is Buck v. Bell[12], popping up in the late 1920s. The Court endorsed a Virginia Law which demanded for involuntary sterilization for “mentally defective”. The Court in this case gave supremacy to community interests in order to prevent the creation of an “incompetent society” over an individual’s right to take independent decisions and make reproductive choices[13]. The Court refused to consider that the law resulted in breach of Right to Privacy. However, the U.S. Judiciary’s attitude towards involuntary sterilizations have witnesses major changes with the “de-legitimization of eugenics” passes from an enhanced interpretation of genetics, and the public revolt against the mass sterilizations taking place in the course of Nazi Rule[14].

The affairs relating to involuntary or forced sterilization that have been deeply argued upon in the U.S. Courts, unfortunately has failed to be addressed similarly in the Indian Courts. In the recent case of Javed v. State of Haryana[15], the Apex Court of India has scrutinised the constitutionality of disincentives in order to encourage family planning and has parallelly touched upon this matter. It was pleaded before the Court that such disincentives violate the provisions of Article 21 of Indian Constitution infringing one’s right to personal liberty. The petition was discharged in a judgement that revealed disclosed the indifferent behaviour of the Indian Judiciary towards reproductive rights. The judgement given by the Court depicts the inclination of Indian Judiciary towards supremacy of community interests over individual rights, which is certainly not the case in the U.S. The aim of population control is a legitimate end, but at the same time, a democratic State cannot infringe or compromise with the Fundamental Rights of the citizens, taking into consideration the availability of alternative and efficacious tools such as education to solve such issues.

 CONCLUSION AND SUGGESTIONS

The U.S. Judiciary’s outlook towards reproductive rights have gone through severe changes in the last fifty years. In a chain of decisions and judgements, starting with Roe, confined attitude in Buck was deserted for a more unprejudiced stand. However, it would be artless to believe that the U.S. Judiciary has broken all barriers and achieved a perfect balance of interests comprising reproductive rights, such as abortion and forced sterilization. The U.S. Judiciary’s viewpoint towards reproductive rights is based on the grounds of libertarian beliefs and ideals. Indian Judiciary on the other hand, has taken cognizance of the State’s demographic concerns. This was well depicted in the Javed case. Alternatives to sterilization such as education, family planning and, women empowerment is the need of the hour in the Indian context in order to balance non-infringement of Fundamental Rights along with population control. The overall analysis of State policies and Judicial outlooks of the Indian Judiciary can be described as utilitarian due to the fact that it is majorly focused on fulfilling community interests of population control, rather than protection of Fundamental Rights of citizens. The guiding principles and “judicial pronouncements” are crystal clear, however, the scope of reproductive rights in the Indian context remains to be one of the major contradictions.


[1] Reproductive rights of a person enable a person to take all decisions relating to his or her reproductive functions. This is inclusive of the choice of what, when and, how many children to have.

[2] Roe v. Wade 410 U.S. 113, 148-1950 (1973). [hereinafter Roe]

[3] Griswold v. Connecticut, 381 U.S. 479 (1965). The case was regarding a challenge to Connecticut Law on the basis of marital privacy being violated. With a 7-2 decision, it w\as held by the Court that though “Right to Privacy” is not expressly safeguarded under the US Constitution, it can still be read under the Due Process Clause of Fourteenth Amendment.

[4] Griswold, supra note 7. In this case, the Court invalidated 1879 Connecticut Law that made the sale and possession of birth control devices a misdemeanour.

[5] Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976); Planned Parenthood v. Ashcroft, 462 U.S. 476 (1983)

[6] India Const. Article 21 – Right to life and personal liberty

[7] 7 LOK SABKA SECRETARIAT, CONSTITUTIONAL ASSEMBLY DEBATES 849 (rev. ed. 1999)

[8] Roe supra Note 4

[9] INDIAN PENAL CODE, 1860, Section 312

[10] Medical Termination of Pregnancy Act, 1971

[11] M.T.P. Act, Section 3(2). Where the length of pregnancy does not exceed twelve weeks, the opinion of one medical practitioner, “formed in good faith”, that the grounds for Abortion under the Act are satisfied is required. Where the length of the pregnancy exceeds twelve weeks, two medical practitioners must be of such opinion before the abortion can be legally performed.

[12] 274 U.S. 200 (1927)

[13] In Holmes, J’s much criticised words:

It is better for all the world… if society can prevent those who are manifestly unfit from continuing their kind. Id. at 207.

[14] 315 U.S. 535 (1942)

[15] Javed, supra note 5

Author: Ananya Anand

Editor: Kanishka VaishSenior Editor, LexLife India.

Also read: hindu marraige act

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