Reproductive Rights of Women in India and Beyond

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Reproductive rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and the timing of their children and to have the information and means to do so, and the rights to attain the highest standard of sexual and reproductive health. Good sexual and reproductive health is a state of complete physical, mental and social well-being in all matters relating to the reproductive system. It implies that the individuals have the capability to reproduce and have the freedom to decide if, when and how often to do so. To maintain one’s sexual and reproductive health, people need access to accurate information and the safe, effective, affordable and acceptable contraception method of their choice. They must be informed and empowered to protect themselves from sexually transmitted infections. And when they decide to have children, women must have access to services that can help them a fit pregnancy, safe delivery and healthy baby. Every individual has [i]the right to make their own choices about their sexual and reproductive health. Reproductive and sexual health of an individual is an important aspect of human rights with its roots in right to health. In 1994, the Cairo International Conference on Population and Development or ICPD marked a turning point by putting people’s rights and dignity at the very heart of development. It emphasized that sexual and reproductive health is a fundamental human right and that empowering women and girls should be encouraged at global and domestic level. Dr. Babatunde Osotimehin addressed the 25th Regular Session of the Human Rights Council where he emphasized that sexual and reproductive health is a fundamental human right and that empowering women and girls is one of the most reliable pathways to improved well-being of all.

This article examines the reproductive rights of women in India, United Kingdom and UAE and the legal framework of the rights and policies.

India

Reproductive rights of individuals and couples in India can be located in laws and policies relating to health, employment, education, provision of food and nutrition, and protection from gender-based violence. These fundamental rights are guaranteed under Part III of the Constitution of India, but the right to health or reproductive rights are not expressly recognized as fundamental rights. The Constitution of India recognizes many of these same rights as fundamental rights that the government has an obligation to uphold, including the right to equality and non-discrimination under Article 14 and 15, and the right to life under Article 21 which is understood through jurisprudence to include the right to health, dignity, freedom from torture and ill treatment and privacy. Several provisions under Part IV of the Constitution (Directive Principles of State Policy) are also related to issues of health, which are not enforceable in any court but create an obligation on the states to apply these principles in making laws and policies such as Article 39(e), 39(f), 42, 45 and 47.

Judicial Recognition of Reproductive rights as Fundamental Rights

On many occasions our Honorable Supreme Court has interpreted the right to health as an integral part to the right to life.

In Suchita Srivastava and Another vs Chandigarh Administration the court held that reproductive autonomy is a dimension of personal liberty under Article 21: “It is important to recognize that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively on the insistence on the use of contraceptive methods. Furthermore, the women are also free to choose birth-control methods such as sterilization procedures. Taken to their logical conclusions, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.”

In 2011 the Delhi High Court issued a landmark joint decision in the cases of Laxmi Mandal vs. Deen Dayal Hari Nagar Hospital & Others. And Jaitun vs. Maternity Home, MCD, Jang Pura and Others. concerning denials of maternal health cares to two women living below the poverty line. The court stated that: “these petitions focus on two inalienable survival rights that form part of the right to life: the right to health which includes the right to access and receive a minimum standard of treatment and care in public health facilities and in particular Reproductive rights of the mother.” Citing CEDAW (Convention on the Elimination of all forms of Discrimination against Women)the decision held that: “no woman, more so a pregnant woman should be denied the facility of treatment t any stage irrespective of her social and economic background. This is where the inalienable right to health which is so inherent that Right to life gets enforced.

Legislations on Women’s Reproductive Rights

According to UNICEF India and World Bank data, India counts among the highest number of maternal deaths. Unsafe abortions are still prevalent in many parts of the country. The lack of education, and healthcare resources results in ill treatment of women. This is one of the main reasons for increasing health hazards in females. In the past the Medical Termination of Pregnancy Act,1971 has regulated abortions in India. This act mentioned when, how and under what conditions a woman can terminate her pregnancy. It initially applied to only married women and gave a period of under 20 weeks from the day of conception for the termination of pregnancy. Due to this, unmarried women or the married one as well after prescribed period of 20 weeks, unfortunately opt for illegal or unauthorized means of abortions. Such abortions are one of the leading causes maternal deaths. Women from economically as well as socially weaker sections often resort to such methods because of stigma attached to termination of pregnancy.

The Act recently in 2021 was amended and became the Medical Termination of Pregnancy Act, 2021. The newly amended act expanded the access to safe legal abortion and tried to pave way for humanitarian as well as comprehensive access of benefits to the women. The act applies to married as well unmarried women and has replaced the term ‘Husband’ from the older act to ‘Partner’, which indicates that live-in couples or other unmarried women can also access legal termination. It changed the prescribed time period from 20 weeks to 24 weeks under the given conditions

  • The prescribed Gestational age limit is 24 weeks for rape survivors and beyond 24 weeks for substantial fetal abnormalities
  • Opinion of medical practitioner is required as per the gestational period-

   For 20 weeks- opinion of one medical practitioner

   For 20-24 weeks- opinion of two medical practitioners required

   For beyond 24 weeks- opinion of a medical board required

Abortions are regulated under the MTP Act,2021 and no other way is prescribed. This Act has made abortions legal in India, which is a victory in terms of reproductive rights as in countries like UAE abortions are illegal. This, act has aimed to achieve universal access to safe sexual and reproductive health care. However, some limitations of the act are also observed. Even though the amended act has widened its scope still the complete autonomy has not been given to women for the termination of pregnancy. Termination of pregnancy beyond 24 weeks is only allowed under special circumstances like fetal abnormalities. If such concerns are further addressed then a more comprehensive and equally accessible healthcare can be given to women. Government Schemes to promote well-being of pregnant women and related campaigns. There are many schemes that facilitate education as well as ensure the nutritional and health benefits of women.

Reproductive, Maternal, Newborn, Child and Adolescent Health (RMNCH+A) is a scheme aimed at the health benefits for newborn children, maternal as well as adolescents. The strategy promotes to improve lifecycle and child survival in India. It links the maternal health to the health of the new born children and components of family planning and prenatal diagnostic techniques. It has strengthened the infrastructure, human resource and supply chain management of healthcare. Pradhan Mantri Surakshit Maitritva Abhiyan is the governmental program that guarantees a minimum package of antenatal care to women at their second and third trimesters of pregnancy. It ensures that diagnostics services are conducted well at the health centers. An appropriate management of health conditions during pregnancy like hypertension, high blood pressure or anemia are taken care of. Appropriate birth-planning and complication readiness in some cases is taken care in the health centers.

For young women the most effective way of awareness is through educational programs. Age-appropriate Comprehensive Sexuality Education is widely recognized as the way of enabling young women to become aware about their bodies, personal hygiene, gender identities and safe sexual practices. A scientific and accurate study of sex education is important for the youth to give a better understanding of exercise of affirmative consent, safe sex and elimination of sexual stigma.

United Kingdom

In the United Kingdom greater attention has been paid to sexual health at the national policy level, including strategies on teenage pregnancies and sexual health. The law against Female Genital Mutilation has been strengthened and the access to abortions services are funded by National Health Service has improved and above 80% of contraceptive advice is accessed through general practice.

Laws related too abortions and genital mutilation

Female Genital Mutilation is a practice where the female genitals are deliberately cut, injured or changed but there is no medical reason for this to be done. This practice is illegal in UK. The Female Genital Mutilation Act 2003 (came into force in 2004) was introduced against the practice of FGM. It is an offence in United Kingdom. The courts are empowered to act on such offences and protect the young females. FGM is an ill practice and can pose serious effects on the person. It causes constant pain, repeated infections (which can lead to infertility), problems in sexual act and cysts. The FGM act has curbed the practice in UK.

The Abortion Act 1967, has legalized abortion on certain grounds by registered practitioners. The act prescribes a gestational period of 28 weeks. Earlier this act was criminalized in some parts of Northern Ireland. In October 2019, the UK Government’s new guidance on abortions in Northern Ireland states that no criminal charges can be brought against those who have had an abortion, or against doctors who have assisted in abortion procedure. The laws governing abortions in Northern Ireland are most restrictive ones in Europe. The 1967 Abortion Act which allows safe and legal access to abortion in England, Scotland and Wales was never extended to Northern Ireland where seeking abortion was a criminal offence and might result in life imprisonment. The move in 2019 has brought a relief for the women in Northern Ireland as earlier they had to travel to England for abortion.

Laws for safe sex and youth awareness programs

 General Medical Services Contract 2004 deals with contraceptive advice and care. Trained medical practitioners are assigned to aware and give public access to contraceptives among the people to promote safe sex and reduce Sexually transmitted diseases. The National Strategy for Sexual Health and HIV sets out a framework for how sexual health services should be provided in England. It works actively on the awareness as well as accessibility of contraceptive methods, sexual health awareness campaign for the public.

The Teenage Pregnancy Strategy is a cross-government program aiming the Under-18 conceptions and increase the participation of young parents in education and work. For confidentiality purpose in 2004, Government reinforced the right Under-16 to confidential advice and treatment and in fact deemed them competent by law for decision making. The government started the roll-out program for teachers as well for sex and relationship education.

United Arab Emirates (UAE)

On 26 February, Human Rights Watch submitted a report to the United Nations Committee reviewing the UAE’s Compliance with the Convention on the Elimination of all forms of Discrimination against women. Rothna Begum, a senior women’s right researcher at Human Rights Watch stated that: “UAE’s recent reforms are a step in the right direction, but in truth they do not go far enough to dismantle the deep discrimination against women in law and practice.”

Laws On reproductive assistance and abortions

The UAE’s Federal Law No.7 for the year 2019 Concerning Medically Assisted Reproduction governs the use of the Medically Assisted Reproduction Techniques by licensed medical facilities in the UAE. According to this law ART are determined by a decision of Ministry of Health and Prevention and those techniques may not be used in places other than medical centers licensed for this purpose.

Abortion is illegal and criminalized under Article 340 of the Federal Penal Code and even an intent is a criminal offence. It is allowed under some conditions only such as when a woman’s life is in jeopardy/danger or if the unborn child has deformities that will prove fatal for the future. The abortion must take place within 120 days of the pregnancy and must be approved by an authority medical board. The rules related to abortions are strict, marriage certificate is necessary to avail the benefits in both public and private hospitals.

Sexual Health and Contraceptives

The Ministry of Health recommends all birth control pills only under its regulations but the morning after pills is banned. Sexual health education is not mandatory under laws though some private schools do teach sexual education at their own initiative. It is illegal to be sexually active unless someone is married and local healthcare system is based on Islamic Laws. Sexuality and health are generally not taken into consideration and rarely become a part of healthcare campaign. FGM is not illegal but is prohibited in state hospitals and clinics.

Conclusion

The above presented laws and polices of different countries on Reproductive Rights show case the autonomy of women on the reproductive choice. In case of India, the Judiciary has supported and given importance to human rights as well as considered the autonomy of women on their reproductive choice and has time and again declared it as right to life as mentioned in Article 21 of Constitution. The Constitution also upholds the values of right to health which the judiciary has implemented. The Legislative laws for abortion are comprehensive and have paved a way to help to curb maternal deaths. Education programs are also supported by the government to aware the youth and facilitate nutritional and medical programs for pregnant women. However, some shortcomings are there but as the way forward, they can be dealt as there is still a way go further.  

In case of United Kingdom, the rules against female genital mutilation are a modern approach to deal with such critical problems. To promote safe sex and curb Sexually Transmitted diseases the government has launched campaign for adults and youth. In public programs young parents are also educated and encouraged to participate in work. School curriculums also give a focus on sexual health and teachers for sex and relationship advice are also enrolled. Abortions are made legal which is a forward step in ensuring bodily autonomy of women. On the other hand, the laws in UAE are stricter. Abortions are allowed in only specific circumstances and sexual intercourse is illegal before marriage. To avail public and private health facilities a marriage certificate is necessary.

International organizations like World Health Organization, UNHRC, Convention on Eliminating all forms of Discrimination against women have time and again advocated for reproductive rights as essential to human rights. Many countries are signatory to such conventions and the organization shave guided time and again to implement the laws for sexual and reproductive health. Countries have actively tried to make conditions better but a long way is still ahead to achieve the goal for women to have safe sexual health, reproductive health and benefits and an autonomy to decide on family planning.


United nations Population Fund,[i] https://www.unfpa.org/press/sexual-and-reproductive-health-fundamental-human-right-unfpa-executive-director-addresses, (last visited 15 February 2022)

National Health Mission https://nhm.gov.in/index1.php?lang=1&level=1&sublinkid=794&lid=168#:~:text=The%20RMNCH%2BA%20strategy%20promotes,stage%20within%20the%20overall%20strategy. (last visited 16 February 2022)

 National Health Plan https://pmsma.nhp.gov.in/( Last visited 18 Feb 2022)

 National Human Rights Commission https://nhrc.nic.in/sites/default/files/sexual_health_reproductive_health_rights_SAMA_PLD_2018_01012019_1.pdf (last visited 14 February 2022)

 Medical Termination of Pregnancy Act 2021, https://www.drishtiias.com/daily-updates/daily-news-analysis/medical-termination-of-pregnancy-mtp-amendment-act-2021

 Amnesty International, United Kingdom https://www.amnesty.org.uk/issues/sexual-and-reproductive-rights

 Female Genital Mutilation Act 2003, https://www.legislation.gov.uk/ukpga/2003/31/section/5A

 General Medical Services, UK https://psnc.org.uk/the-healthcare-landscape/the-gp-contract/#:~:text=General%20Medical%20Services%20(GMS)&text=The%20GMS%20contract%20covers%20three,areas%20%E2%80%93%20clinical%20and%20public%20health.

 Abortion Act 1967, United Kingdom https://en.wikipedia.org/wiki/Abortion_Act_1967#:~:text=The%20Abortion%20Act%201967%20is,National%20Health%20Service%20(NHS).

 Women’s sexual and reproductive healthcare, UAE https://u.ae/en/about-the-uae

 Medical Foundation for AIDS and Sexual Health http://worldcat.org/identities/lccn-nb2007001054/

Author: Ashi Sharma, Fairfield Institute of Management and Technology, New Delhi

Editor: Kanishka VaishSenior Editor, LexLife India

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