Introduction

“It is impossible to think about the welfare of the world unless the condition of women is improved. It is impossible for a bird to fly on only one wing.” ~ Swami Vivekanand.

Nearly three-quarters of a century later, the silence around unsafe abortions, maternal deaths, use of contraceptives and reproductive rights still deafens independent India.

Broadly, reproductive rights refer to an individual’s ability to choose whether or not to procreate and to maintain reproductive health. This includes the right to start a family, terminate a pregnancy, use contraception, and obtain reproductive health care. The trajectory of women’s emancipation in India has veritably been dynamic. Tracing it right from their participation in nationalist movements, to being forced into the domiciliary domain and to their recent revival as super-women, women in our country have seen it all.

The judiciary has been the flag bearer for securing and furthering reproductive rights here and now. Nevertheless, women’s sexual and reproductive rights in the country still hang in the realm of obliviousness. Despite women successfully marching towards closing gender gaps, the griming realities of maternal health and abortion-related fatalities have weighed heavily against all the progress made.

The griming reality

Despite India being the forerunner in the world to come up with infrastructural and policy measures ensuring safe abortion and contraception, women continue to encounter obstacles in exercising their reproductive rights, including poor health services and dismissal of decision-making authority. It is a problem that encompasses reproductive rights, sexual health, family planning, and maternal health.

Women are often made to face the weight of administrative delays. In one such example, a woman was prevented from having an abortion after 20 weeks, despite having requested one at 17 weeks.

Furthermore, inconsistent judgements add to the general lack of clarity surrounding the conditions in which a woman may legitimately terminate her pregnancy. While a Supreme Court decision in 2019 enabled a woman from Mumbai to terminate her pregnancy at 24 weeks due to a foetal anomaly that would jeopardise her life, previous rulings have penalised women who seek abortions after the 20-week mark, even where medically proven problems existed. Like in early 2017, the apex court decided against a lady whose foetus had a down syndrome-diagnosed abortion at 26 weeks. She was forced to deliver the baby with severe brain disorders, all credit to India’s archaic abortion law.

Additionally, discriminatory precepts like spousal consent being an informal but imperative condition to obtain reproductive health services implicitly or explicitly sabotage women’s reproductive autonomy. Legal protection of reproductive rights as human rights is essential for gender parity and gender equity.

Judiciary to the rescue

Despite these inconsistencies, the Supreme Court has made paramount strides in India regarding the reproductive rights of women. Each country, however, has its restriction and exceptions when it comes to abortion rights.

While abortion has been a contention in America for decades, many states, particularly those led by conservatives, have recently expressed interest in or initiated legislation to limit abortion drastically. Recent newsworthy events include the US Supreme Court’s draught decision in the Dobbs v. Jackson Women’s Health Organization case. The historic rulings in  Planned Parenthood v. Casey (1992) and Roe v. Wade (1973) which protected women’s right to abortion, are reversed in the draught opinion. The apex court of the United States in a significant ruling in 1973, two years after India legalised abortion, recognised 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 her pregnancy.

On the other hand, the Indian judiciary gave true sense to the societal needs in the landmark K.S. Puttaswamy judgment which bestowed upon an individual the sense and privilege of personal liberty under Article 21 of the Indian Constitution. It also reaffirmed the decision in Suchita Srivastava v. Chandigarh Administration, which held that reproductive rights include a woman’s right to carry a pregnancy to term, give birth, and raise children; and that these rights are part of a woman’s right to privacy, dignity, and bodily integrity. In Navtej Singh Johar v. Union of India, the apex court has also extended the meaning of personal liberty by decriminalising adultery and homosexuality.

The reproductive rights are directly affected by these decisions. The right to safe abortion is an essential component of women’s right to bodily integrity, life, and self-determination, and it must be guarded.

Conclusion and way forward

We must not paint the Indian legislative and judiciary as perfect, despite their consistently supporting abortion rights from a liberal standpoint. The old legislation on abortion rights was exemplary but the new one was overdue as it broadened its scope to encompass single women and adjusted the abortion threshold considering recent medical breakthroughs. In addition, the USA recognised the right to privacy in 1891 whereas India recognised it in 2017 bringing the right to abortion under its wide ambit. While it may be said that these developments are late, it is undeniable that India is on the correct path despite the setbacks. On the other hand, the established good norms in the USA have been shaken with the recent trends on the judicial front which is concerning for the developed society of the nation.

The governments in both the nations should focus on providing access to licit and safe abortion, which are integral to sexual and reproductive parity and public health issues. The legal systems must consider these rights as a fundamental part of the laws it enacts, the policies it inserts place and the programs it engenders. The responsibility additionally lies with civil society and development actors to raise these issues for public debate and demands.

As mentioned earlier, the legal protections outlined in the judgements serve as a powerful call to defend and uphold women’s reproductive rights, defined as both reproductive health and autonomy, including for marginalised communities in future litigation.