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NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL

REPRODUCTIVE RIGHTS IN INDIA

Submitted to Submitted by
Prof. (Dr.) Uday Pratap Singh Garima Gupta
2011 BA.LLB 69

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Contents

Introduction
Reproductive Rights as Human Rights
Indias Perspective
Suggestions
Conclusion
Bibliography

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Introduction

Reproductive rights were established as a subset of the human rights. The Proclamation of
Teheran was the first international document to recognize one of these rights when it stated that:
"Parents have a basic human right to determine freely and responsibly the number and the
spacing of their children." Issues regarding the reproductive rights are vigorously contested,
regardless of the populations socio-economic level, religion or culture. A series of human rights
treaties and international conference agreements forged over several decades by governments
increasingly influenced by a growing global movement for women's rights provides a legal
foundation for ending gender discrimination and gender-based rights violations. These
agreements affirm that women and men have equal rights, and oblige states to take action against
discriminatory practices. The Vienna Declaration and Programme of Action, the Programme of
Action of the International Conference on Population and Development (ICPD) and the Platform
for Action adopted at the Fourth World Conference on Women (FWCW) are international
consensus agreements that strongly support gender equality and women's empowerment. In
particular, the ICPD and FWCW documents, drawing on human rights agreements, clearly
articulate the concepts of sexual and reproductive rights. Thus the reproductive rights were
established as a subset of the human rights at the United Nations 1968 international conference
on human rights.

The WHO 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
information to do so, and right to attain the highest standard of sexual and reproductive health.
They also include the right of all to make decisions concerning reproduction free of
discrimination, coercion and violence.

Every day, 800 women die due to pregnancy and childbirth-related complications. Some 222
million women in developing countries want to prevent pregnancy but are not using a modern
method of contraceptionresulting in 80 million unplanned pregnancies and 20 million unsafe
abortions, with life-threatening consequences. One in three girls under 18 are married without
their consent in low and middle-income countries. Every year, over 16 million adolescent girls

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give birth. Meanwhile, maternal mortality is the leading cause of death for this age group in the
developing world. Every day, over 2,000 young people become infected with HIV. As many as 7
in 10 women experience physical and/or sexual violence in their lifetimes. 1 With such an
alarming data we need to go in depth meaning of reproductive rights. Thus, the right to sexual
and reproductive health implies that people are able to enjoy a mutually satisfying and safe
relationship, free from coercion or violence and without fear of infection or pregnancy, and that
they are able to regulate their fertility without adverse or dangerous consequences. Sexual and
reproductive rights provide the framework within which sexual and reproductive well-being can
be achieved.

Though India has ratified The Convention on the Elimination of All Forms of Discrimination
Against Women (1979) [CEDAW], which protects the right of women to make their own
decisions about their fertility and sexuality. But as a nation we have failed to provide the basic
reproductive rights to the women.

Reproductive Rights as Human Rights

Since most existing legally binding international human rights instruments do not explicitly
mention sexual and reproductive rights, a broad coalition of NGOs, civil servants, and experts
working in international organizations have been promoting a reinterpretation of those
instruments to link the realization of the already internationally recognized human rights with the
realization of reproductive rights. An example of this linkage is provided by the 1994 Cairo
Programme of Action2:

"reproductive rights embrace certain human rights that are already recognized in national laws,
international human rights documents and other relevant United Nations consensus documents.
These 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 sexual and
reproductive health. It also includes the right of all to make decisions concerning reproduction

1
http://www.icpdtaskforce.org/beyond-2014/policy-recommendations.html
2
http://www.hrln.org/hrln/training-and-development/about-ccri/433.html

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free of discrimination, coercion and violence as expressed in human rights documents. In the
exercise of this right, they should take into account the needs of their living and future children
and their responsibilities towards the community."

Building upon these developments are two new instruments that explicitly recognize womens
reproductive rights. The Convention on the Rights of Persons with Disabilities (CPRD) is the
first comprehensive international human rights instrument to specifically identify the right to
reproductive and sexual health as a human right. India has ratified CPRD on October1, 2007 and
the contents of the same are binding on our legal system. Reproductive rights have also recently
been incorporated into the international development agenda. With the adoption of the UN
Millennium Development Goals (MDGs) in 2000, governments have agreed that addressing
womens reproductive health is key to promoting development. In the document produced at the
2005 World Summit, leaders from around the world made an explicit commitment to achieving
universal access to reproductive health by 2015.3

Similarly, Amnesty International has argued that the realisation of reproductive rights is linked
with the realisation of a series of recognised human rights, including the right to health, the right
to freedom from discrimination, the right to privacy, and the right not to be subjected to torture
or ill-treatment. However, not all states have accepted the inclusion of reproductive rights in the
body of internationally recognized human rights. At the Cairo Conference, several states like
UAE, Libya, Kuwait, Peru, Jordan, Iran etc have made formal reservations either to the concept
of reproductive rights or to its specific content.

12 Human Rights key to Reproductive Rights

1) Right to Life
2) Right to Liberty and security of person
3) Right to health, including sexual and Reproductive health
4) Right to decide the number and spacing of children
5) Right to consent to marriage and to equality in marriage
6) Right to privacy
7) Right to equality and non-discrimination

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United Nations General Assembly, 2005 World Summit Outcome, U.N. Doc A/Res/60/1 (2005)

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8) Right to be Free from practices that harm Women and girls
9) Right to not be subjected to torture or other cruel, inhuman, or degrading treatment or
punishment
10) Right to be Free from sexual and gender-Based violence
11) Right to access sexual and Reproductive health education and Family planning
information
12) Right to enjoy the benefits of scientific progress

Reproductive rights also includes the right to abortion, in Roe v. Wade the Court created a right
to abortion based on much more than bodily concerns:

Specific and direct harm medically diagnosable even in early pregnancy may be involved.
Maternity, or additional offspring, may force upon the woman a distressful life and future.
Psychological harm may be imminent. Mental and physical health may be taxed by child care.
There is also the distress, for all concerned, associated with the unwanted child, and there is the
problem of bringing a child into a family already unable, psychologically and otherwise, to care
for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed
motherhood may be involved.

Indias Perspective

The Indian perspective on reproductive rights has had to additionally take account of several
other inequalities and contradictions in society. In a situation where women have no right to
clean drinking water, basic facilities, health care or education; where society decides where
women will live, how they will live (and often, how they will die), who they will marry, whether
they will study; where the State (and international development and aid agencies) believe they
have the right to determine how many children women will bear, when they will get sterilised
and what form of contraception women must opt for; it is apparent that the struggle for Indian
womens reproductive rights needs to go further than reproductive freedom, and enter the arena
of social, economic and political rights. Though India is a signatory to the CEDAW and, has
committed itself to ethical and professional standards in family planning services, including the
right to personal reproductive autonomy and collective gender equality. Indian policies and laws

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so far seem to reflect this understanding, at least on paper. The National Population Policy, 2000,
affirms the right to voluntary and informed choice in matters related to contraception. The
legislations are Maternity Benefit Act, 1961 (No. 53 of 1961), Medical Termination of
Pregnancy Act, 1971 (No.34 of 1971), Pre-Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) 1994 (No. 57 of 1994), Infant Milk Substitutes, Feeding Bottles
and Infant Foods (Regulation of Production Supply and Distribution) Act, 1992 (No.41 of 1992)
etc. Under the Indian Constitution the Reproductive Rights can be dealt under Article
14(Equality before Law), Article 15 (Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth), Article 21 (Protection of life and personal liberty), Article 38 (State
to secure a social order for the promotion of welfare of people), Article 39(Certain principles of
policy to be followed by the State) and Article 42(Provision for just and humane conditions of
work and maternity relief).

In the case of Laxmi Mandal vs Deen Dayal Hari Nager Hospital & Ors4Justice Muralidhar
instructed the State of Haryana, to pay compensation of Rs 2.4 lakhs to the family of Shanti Devi
who passed away during child birth. The Court found the Respondents in violation of Shanti
Devi's right to life and health, reiterating that her death was preventable.

In the case of Jaitun v Maternity Home, MCD, Jangpura & Ors W.P. No. 10700/2009 High
Court directed the Municipal Corporation of Delhi and Government of National Capital Territory
of Delhi to pay Rs 50,000 compensation to Fatima for the violation of her fundamental rights by
being compelled to give birth to her daughter under a tree, on account of the denial of basic
medical services.

Justice Muralidhar said "These petitions are essentially about the protection and enforcement of
the basic, fundamental and human right to life under Article 21 of the Constitution. These
petitions focus on two inalienable survival rights that form part of the right to life: the right to
health (which would include the right to access and receive a minimum standard of treatment and
care in public health facilities) and in particular the reproductive rights of the mother.5

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172(2010)DLT9
5
http://hrlnindia.blogspot.in/2010/06/hrln-gets-remarkable-judgement-in-case.html

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The famous case of Suchita Srivastava and Anr.Vs.Chandigarh Administration 6 held that a
woman's right to make reproductive choices is also a dimension of 'personal liberty' as
understood under Article 21 of the Constitution of India. It is important to recognise 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 the insistence on use of contraceptive methods. Furthermore, women are also free to
choose birth-control methods such as undergoing sterilisation procedures. Taken to their logical
conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to its full
term, to give birth and to subsequently raise children. However, in the case of pregnant women
there is also a 'compelling state interest' in protecting the life of the prospective child. Therefore,
the termination of a pregnancy is only permitted when the conditions specified in the applicable
statute have been fulfilled. Hence, the provisions of the MTP Act, 1971 can also be viewed as
reasonable restrictions that have been placed on the exercise of reproductive choices.

This case was reaffirmed in Delhi High Court in X (Assumed name of the prosecutrix) Vs.The
State (N.C.T. of Delhi) and Ors7. The reproductive right of humans should be treated as a basic
right. For instance,in B. K. Parthasarthi v. Government of Andhra Pradesh 8, the High Court
upheld the right of reproductive autonomy of an individual as a facet of his right to privacy
and agreed with the decision of the US Supreme Court in Jack T. Skinner v. State of Oklahoma,
which characterised the right to reproduce as one of the basic civil rights of man.

Suggestions

There is an urgent need to support public education campaigns and community


mobilization on human rights and laws related to sexual and reproductive rights to
foster understanding of human sexuality as a positive aspect of life; create cultures of
acceptance, respect, non-discrimination and non-violence; eliminate gender

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AIR2010 SC 235
7
2013(2) JCC 1068
8
1999 (5) ALT 715

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discrimination and violence against women and girls; and engage men, policy-makers
and law enforcers, parliamentarians, educators and health providers, employers, the
private sector and journalists, in creating an enabling environment for the equal
enjoyment of these rights by all.
There should be amendment in the existing laws and policies that respect and protect
sexual and reproductive rights and enable all individuals to exercise them without
discrimination on any grounds, regardless of age, sex, race, ethnicity, class, caste,
religious affiliation, marital status, occupation, disability, HIV status, sexual orientation
or gender identity, among other factors.

Conclusion

Through this project I conclude that still India has not been able to promote the reproductive
rights of women and lacks concrete efforts and legislations for the protection of this right.
Human rights include sexual and reproductive rights which are now an inseparable part of the
womans life. Women have a right and choice with respect to their health and lives.

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Bibliography
http://nhrc.nic.in/documents/LibDoc/Reproductive_Rights_A.pdf
http://nhrc.nic.in/documents/LibDoc/Reproductive_Rights_C.pdf
http://cogprints.org/7794/1/2011-1-9.pdf
http://www.icw.org/files/SRH%20rights.pdf
http://www.hrln.org/hrln/training-and-development/about-ccri/433.html
http://reproductiverights.org/sites/crr.civicactions.net/files/documents/RRareHR_final.pdf
http://www.amnestyusa.org/our-work/issues/women-s-rights/women-s-health-sexual-and-
reproductive-rights
http://www.hrln.org/hrln/training-and-development/about-ccri/435.html
http://lawcommissionofindia.nic.in/reports/report228.pdf
https://sites.google.com/site/saheliorgsite/health/reproductive-rights-in-the-indian-context
http://www.legalserviceindia.com/articles/gen_j.htm
http://lawprofessors.typepad.com/reproductive_rights/
http://www.icpdtaskforce.org/beyond-2014/policy-recommendations.html
http://truth-out.org/news/item/11349-the-widespread-war-on-reproductive-rights
www.manupatra.com
The Human Rights: Conventions and Indian Law- By U.N. Gupta

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