What is Reproductive and Sexual Health?
Reproductive and sexual health is one of the most essential components of the universal right to the highest attainable standard of mental and physical health, as mentioned in the Universal Declaration of Human Rights and other related conventions, declarations and agreements. Women’s sexual as well as reproductive health is related to multiple number of human rights. These include the right to education, life, and right of freedom from torture, right to privacy, right to health and freedom from discrimination. The Committee on Economic, Social and Cultural Rights and the Committee on the Elimination of Discrimination against Women (CEDAW) have specifically mentioned that a woman’s right to health includes, within its ambit, her reproductive as well as sexual health.
Even though these obligation are present, the violation of women’s reproductive and sexual health rights are very frequent. These violations are mostly deeply rooted in the societal norms and values that are related to the woman’s sexuality. A few patriarchal notions about women’s role in the family often measure her value based on her ability to reproduce. Early marriage resulting in early pregnancy or repeated pregnancies without the required spacing mostly in order to beget a son have a devastating effect on women’s health and have fatal consequences
Sexual and Reproductive Health in India
Laws enabling abortion, protection against forced sex selection, maternity benefits have an impact, whether direct or indirect on the enjoyment of reproductive rights by women.
There have been various proposals regarding the widening of the sphere of these rights to various life stages and go beyond the maternal health, as mentioned in the National Health Mission (2012-2017) as well as the Reproductive Maternal Neonatal Child and Adolescent Health Programme, but the assessment and the ground realities provided evidence to the contrary. The narrow focus flags serious concerns about the lack of care and protection of other aspects of the reproductive health. Even the public healthcare system of the country is challenged by plethora of issues including lack of proper infrastructure, low investment, and inadequacy of skilled human resources and so on. Additionally, there is an absence of any robust regulation. All of these factors have contributed to the lack to accessibility, affordability and quality of the healthcare being provided.
Pre Medical Termination of Pregnancy Act Era
Before the MTP Act, abortion was, under various circumstances, illegal in India. Section 312 of the Indian Penal Code provided that whoever voluntarily causes a woman to miscarry would be penalised with imprisonment which may extend up to seven years and fine. The only exception was when it was to save the life of the pregnant woman. Later, with the enactment of the MTP Act, this particular section of the IPC was overridden.
The Act was enacted two years before the birth of the landmark judgment by the US Supreme Court in the case of Roe v Wade. The court held that all the laws that criminalise abortions of any kind, except the ones where the life of the woman is in danger, will be unconstitutional as they were in violation of the right to privacy of the pregnant woman. And also this right needs to be balanced against the right of state’s legitimate interest in the protection of the potential human life and the pregnant woman in the various stages of pregnancy.
The MTP Act, 1971
The legality of abortion is made conditional depending upon the mental and physical health of the pregnant woman and the likelihood of the unborn child being born with a mental or physical abnormality. The mental health will be negatively impacted, according to the Indian Law, if the pregnancy takes place without consent i.e. by rape or failure of the contraceptive method used.
If the woman is below the age of 18 years or is suffering with a mental illness, the consent of her guardians is required according to the MTP Act, 2003. Practitioners who perform illegal procedures or even women who are seeking abortion for reasons other than saving her own life are made an offense under the MTP Act.
Abortion is considered to be legal up to 20 weeks. Now, between week 1 and 12, the legal abortions requires consultation with only one medical practitioner, but in a period beyond that i.e. between week 12 and 20, the consultation needs to be with two medical practitioners. Therefore, this reflects how the decision-making power have been handed over to the medical practitioners rather than the woman wanting to access the particular service.
The Jurisprudence and the Need for Amendment
In 2008, the Bombay High Court denied permission to a women who was pregnant for 26 weeks and the foetus was diagnosed with Congenital Heart Disease. Again in 2015, the Punjab and Haryana High Court denied abortion to a 13 year old rape victim who was 25 weeks pregnant. And more recently, in 2016, the Punjab and Haryana High Court again denied abortion to yet another rape victim because the commissioned medical report did not agree with it.
In another case of the Supreme Court, the court took a progressive turn. In this case, the woman was suffering from mental retardation. She was raped and consequently conceived in a state run hospital. Here, the apex court upheld her reproductive right stating, “There is no doubt about a woman’s right to take her own reproductive decisions as it is also a dimension of the right to personal liberty envisaged under article 21 of the Indian Constitution. It is important that we recognise that reproductive choices extend to both procreating as well as abstaining from procreate. The main point of consideration is that woman’s right to bodily integrity, dignity and privacy should always be upheld and respected.”
The MTP Amendment Bill, 2020
The bill seeks to place an unmarried woman at par with her married counterpart when it comes to seeking abortion due to contraceptive failure. So jurisprudentially, the rationale of the law against domestic violence, which does not differentiate between women who are married and the ones who were in a live-in relationship, is in a way carried forward with this amendment.
The amendment also proposes an increase in the upper limit of the gestation period from 20 weeks to 24 weeks. The amendment bill sets no upper limit for the abortions that take place due to substantial foetal abnormalities. Now this classification in itself is an issue as it reinforces the perspective that certain kind of foetuses are undesirable and unwanted and need to be forgone and also, that women do not possess proper sovereignty over their body to get an abortion unless it is to get rid of an socially unwanted or undesirable foetus. Such a law, therefore, fails to actualise the reproductive justice as well the autonomy for women and promotes ableism and eugenics.
Inequity of Accessibility
The accessibility and availability of the abortion services in the rural areas is sparse. Majority of the population belongs to the rural area, the abortion services are really few and this is a cause of concern as more than half of the deaths related to abortion are due to lack of accessibility. Women in rural areas have 26% higher chance of dying from complications in pregnancy as compared to the ones in the urban areas. Rural women are 48% more likely to opt for an unsafe abortion and women with households of minimal asset holdings are 45% more likely to opt for an unsafe abortion.
Obstructions within the Healthcare System
A survey in the year 2005 found that 94% of the primary health centres of the country and 60% of the community ones did not offer any care services related to abortion at all.Then later till 2014, most of these health centres were under-staffed with lack of resources and the standards were below what was prescribed by the Indian Public Health Standards.
These obstacles combine to increase the number of illegal abortions services provided and, hence, strengthen the stigma that stays around its legality.
The amendments proposed in the 2020 Bill fall short of ensuring confidentiality, dignity, autonomy and justice for women who need to terminate their respective pregnancies”. The law has clearly failed to draw any inspiration from the 2017 Puttaswamy judgment that states, “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation… Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life.”
About the author
Ameya Nath is a 5th Year student of Dr. Ram Manohar Lohiya National Law University
“Being brought up in India, I have witnessed firsthand the disparity between the haves and the have-nots.
My scholarly and professional undertakings in the course of recent years are an attempt at fulfilling the
responsibility that comes with my good fortune of being in the “haves”. In what pursues, I feel grateful as to how these encounters have molded my interests and have driven me to my quest for an academic career in law. My innate strengths have always been hard work, creative abilities, analytical skills and the power of imagination. Pursuing a career in law allowed me to channel them in the best possible way. I have made sincere efforts to achieve a solid foundation in law balancing both intellectual and practical experiences.
I was fortunate enough to get eight more of my papers published. They cover a range of topics including gender neutrality of rape laws, disenfranchisement of inmates, rights of the transgender community, reproductive rights of the women, expansion and evolution of the doctrine of constitutional morality and so on.”