Reproductive Choice of a Woman: A Fundamental Right

AUTHOR’S PROFILE: Nikita Saha, a Final Year Student of B.A.LL.B. (Hons.) program at Assam University, Silchar. She takes an active interest in Criminal law and Human Rights Law.

“Reproductive freedom is critical to a whole range of issues. If we can’t take charge of this most personal aspect of our lives, we can’t take care of anything. It should not be seen as a privilege or as a benefit, but a fundamental human right."

- Faye Wattleton

INTRODUCTION

All of us have a right to bodily autonomy, which means we should be able to make decisions about our bodies on our own. In our society, women and girls are often denied reproductive choices. It is not only immoral and discriminatory, but it also infringes on their basic human rights, including the right to life and dignity. It adds to disparity and violence. The right to reproductive choices is a basic fundamental right that should be granted to all without question and with dignity. With the passage of time, tremendous progress in implementing reproductive health has been made. There is still a long way to go in fully acknowledging reproductive rights. It will only be possible if society as a whole comes out to support the cause and speak openly about it.

WHAT ARE REPRODUCTIVE RIGHTS?

According to Merriam-Webster dictionary, Reproductive rights are “a woman's right to choose whether or not she will have a baby”.[i] However, the term has a wider scope, it refers to an individual's ability to choose whether or not to procreate and to maintain reproductive health. It could include the right to start a family, end a pregnancy, use contraception, learn about sex education in public schools, and obtain reproductive health services.

The International Conference on Population and Development (ICPD) held in Cairo in 1994 defined Reproductive rights as “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” It also includes "the right of all to make decisions concerning reproduction free of discrimination, coercion, and violence.”[ii]

Reproductive rights are critical for accomplishing demographic, health, and development goals, they are equally crucial as human rights that preserve an individual's fundamental dignity. Reproductive rights are divided into three categories: (1) reproductive self-determination, (2) sexual and reproductive health services, information, and education, and (3) fairness and non-discrimination. Issues regarding reproductive rights are vigorously contested, regardless of the country's socio-economic level, religion or culture. [iii]

Reproductive right is a new notion, and it's related to the growth of social movements fighting for birth control, legal abortion, and women's control over pregnancy and child-birth. These movements are associated with broader social issues such as the desire to slow population growth in developed countries and the entry of women into the labour force.

The ability to have a legal or safe abortion, to exercise control over one's reproductive functions, to have access to information to make reproductive decisions without fear of coercion, discrimination, or violence, to receive proper education about contraception and sexually transmitted diseases, and to avoid coerced sterilization and contraception are all examples of reproductive rights. It also includes the right to be free of gender-based practices including female genital mutilation and male genital mutilation.

WHY IS IT IMPORTANT TO HAVE REPRODUCTIVE RIGHTS?

Human rights include reproductive rights, which are an integral element of human rights. The States should protect the reproductive rights of an individual since a breach of these rights can lead to violations of many other human rights, such as the right to a healthy and dignified life, equality and non-discrimination, privacy and information, and the right to be free of torture and ill-treatment. Women must also have access to reproductive health information and services, as well as the right to make fully informed decisions about their reproductive health without fear of violence, discrimination, or harassment. A person's decision to become a parent or not is a very personal and crucial one. Especially women, in particular, the ability to control decisions relating to their reproductive health is crucial because it ensures full enjoyment of their rights as well as a society free of discrimination. As a result, reproductive rights are an essential component of a free society, without which women would not be able to achieve complete equality.[iv]

ISSUES IN REPRODUCTIVE RIGHTS

Women in protective homes or institutions, women in conflict zones, women convicts, sex workers, women with a disability and mental illness, and others are particularly vulnerable to abuses of their reproductive rights. They should have proper reproductive health care and understand their rights and consent. Apart from this, there are many other concerns around reproductive rights:

1. LACK OF SEX EDUCATION – Sex is taken as taboo and not discussed openly. Even with near and dear ones, many are hesitant to speak freely about it. According to the United Nations Population Fund (2016), sex education refers to "a rights-based and gender-focused approach to sexuality education, whether in school or out of school. It helps people to make healthy decisions about sex and sexuality. It includes scientifically accurate information about human development, anatomy, and reproductive health, as well as information about contraception, childbirth, and (STIs), including HIV"[v]. Lack of sex education has had a huge impact on females' lives. Due to this women face various health difficulties like unwanted pregnancy, sexually transmitted disease, unsafe abortion, and sexual exploitation. Sex education should be included in the national curriculum to ensure that young people are aware of their sexual health and safety. According to a survey, by the age of 18, 39% of women have had sexual intercourse, the number rising to 59% by the age of 20. The absence of crucial knowledge about their bodies makes them more vulnerable to sexual violations. Thus sex education is very important especially for females, to prevent them from experiencing the negative effects.[vi]
2. FAMILY PLANNING AWARENESS - Family planning awareness includes education, counselling, and birth control options to help people decide if and when they want to have children. Family planning aids in better health outcomes for children and women. According to a study made in 2019 by the Family Planning Association (FPA), 14% of pregnancies among women under the age of 20 in India are unplanned. It also states that more than 34% of married adolescent girls have been abused physically, emotionally, or sexually. Access to safe, voluntary family planning is a fundamental human right.[vii] Gender equality, women's empowerment, and poverty alleviation are all important goals that must be met. Regardless of this, an estimated 218 million women in developing countries do not use safe and effective family planning methods, owing to various factors ranging from a lack of information or services to a lack of support from their partners or communities.[viii]
3. ABORTION - In many countries, abortion is still illegal. Even in countries where it is legal, it is time-barred, after which a woman cannot undergo an abortion. According to data from 2010 to 2014, over 45 per cent of centres abortions in the world were unsafe. One-third of all unsafe abortions were carried out by unskilled individuals using risky and intrusive procedures.[ix] Each year, unsafe abortion is responsible for between 4.7% and 13.2% of maternal deaths.[x] In India, The Medical Termination of Pregnancy Act deals with abortion. Recently the 2021 Amendment Act has increased the gestational limit for termination of a pregnancy from 20 to 24 weeks for some categories of women.[xi]
4. STERILIZATION - The most preferred method of contraception among married couples is sterilization, with roughly twice as many couples opting for female partner sterilization over male sterilization. Sterilization might be a viable alternative for ladies who do not want to have children. According to a survey conducted by the Centers for Disease Control and Prevention Trusted Source, female sterilization is used by around 27% of American women of reproductive age, this equates to 10.2 million females.[xii]

Several cases of forced sterilization have been reported, in which women who desired fertility were sterilized without their knowledge or consent. Persons who belong to specific population groups, such as HIV-positive people, people with disabilities, indigenous peoples and ethnic minorities, as well as transgender and intersex people, are still sterilized without their consent in several nations. Sterilization, like any other contraceptive procedure, should only be given with the individual's full, free, and informed consent. Forced sterilization is unethical and violative of an individual's freedom of choice.

1. VIRGINITY TEST - It is a gynaecological examination used to detect if a woman or girl has had vaginal intercourse. The term "virginity" is a social construct that reflects gender disparity in women's treatment and is mainly based on conventional notions that female sexuality should be limited to marriage. These examinations are violative of women's and girls' human rights and can also cause physical, psychological, and social consequences.[xiii]
2. FEMALE GENITAL MUTILATION – Female genital mutilation, also known as 'female genital cutting' refers to "all non-medical operations that involve partial or whole removal of the external female genitalia or other harm to the female genital organs." At least 200 million girls and women aged 15–49 are reported to have undergone such procedures around the world. Severe pain, infections, decreased sexual pleasure, and post-traumatic stress disorder are all possible long-term implications. Many patients get this surgery against their will as a result of peer pressure or fear. Female genital mutilation is considered to preserve a woman's virginity and make her more 'pure' and attractive.

The practice reflects long-standing gender inequality since it is based on gender disparities and power imbalances between men and women and it prevents women from exercising their human rights fully and equally. Female genital mutilation is associated with a variety of health risks and effects. Furthermore, it violates a woman's right to health, safety, and physical integrity as well as the right to be free of torture and cruel, inhuman, or degrading treatment. It is a type of physical and psychological violence committed against women and girls.[xiv]

1. MENTAL HEALTH - Mental health and reproductive rights are interlinked. Most of the reproductive health concerns, particularly those, that are chronic, can lead to depression and other serious mental health difficulties. Menstruation and menopause, pregnancy and maternal outcomes, sexuality, gender violence, sexually transmitted infections including HIV and AIDS, family planning, uterine prolapse, obstetric fistula, etc., can have a serious effect on mental health. According to studies, stressful life events and reproductive health issues are strongly linked to depression and anxiety disorders. In times of conflict and other humanitarian crises, these problems are frequently exacerbated. Furthermore, because of their subordinate gender roles and societal positions, women have disproportionately poor mental health. For example, fistula, perineal tears, and uterovaginal prolapse are substantially more common among women living in resource-poor environments. However, neither reproductive health policies and programs nor public health initiatives put the necessary emphasis on mental health issues. Mental health must be recognized as a crucial component of public health.[xv]
2. MATERNAL DEATHS – Poor maternal health continues to be an unjustifiable but real problem in India. Even though the issue has received a great deal of attention and is the subject of policies and programs from both the Indian government and international organizations, focusing solely on institutional deliveries and neglecting the larger context of sexual and reproductive rights is not a practical solution to this important problem. The absence of ANC during pregnancy, a lack of emergency obstetric care at tertiary centers, a lack of skilled care during childbirth, inadequate equipment, and drug and blood bank shortages at facilities are all common problems in many public health settings in the country, all of which contribute to poor maternal health and high rates of maternal mortality. The highest rate of maternal mortality is among women aged 15 to 24, with unsafe abortion accounting for half of all maternal deaths. Several aspects that affect maternal health, such as access to safe abortion services, contraception choice, dignified birthing, poverty, and nutrition, are still policy blind spots. The high maternal mortality rate is a result of both women's vulnerability and patriarchal and gender-based discrimination prevalent in Indian society.[xvi]

ABORTION LAWS

Pregnancy is a woman's reproductive choice. Any woman who wants an abortion should be able to get one legally and safely. On the other hand, states should protect life. Hence, safeguarding an unborn becomes essential. To do so the States all over the world impose certain conditions and time restrictions for abortions based on the health of the foetus and the risk to the pregnant woman. Women should be able to control their reproductive functions, choose whether or not to have children, and have access to contraception, family planning, and health facilities.

In India, terminating a pregnancy is a criminal offence unless it is under the Medical Termination of Pregnancy (MTP) Act. The Act regulates the circumstances under which a pregnancy can be terminated. The MTP Act was recently amended in 2021, allowing all women to seek safe abortion services due to contraceptive failure, increasing the gestation limit to 24 weeks for particular categories of women, and requiring the opinion of one doctor up to 20 weeks of pregnancy. The Act authorizes to establish state-level Medical Boards to determine whether a pregnancy can be terminated after 24 weeks if there are significant foetal abnormalities.

The highly controversial Texas law has recently drawn widespread criticism from throughout the world. The new Texas law prohibits the majority of abortions. According to the new Texas law, doctors are prohibited from performing abortions if a heartbeat is found, which occurs about six weeks before most women are even aware they are pregnant. The law has no exceptions for rape victims, and it also prosecutes abortion doctors as well as anyone who assists or abets a woman getting an abortion. Abortion patients, on the other hand, cannot be sued. Although the Supreme Court declined to block the law, it remains to be seen whether it is found to be unconstitutional.[xvii]

CONCLUSION

The ultimate purpose of the right to reproduction is the individual's well-being and thus everyone should be able to freely exercise their reproductive choice. Not only will a better approach to reproductive health assist women, but it will also benefit society as a whole. Men, particularly spouses, must come out in support, accept their wives consent, and participate equally in the decision-making process. The governments must ensure proper reproductive health as well as reproductive information and education to safeguard the individual's rights and promote wellbeing and a healthy lifestyle. This will, in turn, benefit the country's growth and development. Much care must be taken for the rights of the vulnerable such as people with disabilities and mental illness. Everyone, regardless of socioeconomic level or background, should have equal access to health care services. Thus, all this will contribute to a society free of discrimination and promote gender justice and safeguard human rights.

FAQ –

Q. Which Act in India legalized abortion?

A. The Medical Termination of Pregnancy (MTP) Act, 1971.

REFERENCES

[i] “Reproductive rights.” Merriam-Webster.com Dictionary, Merriam-Webster, <https://www.merriam-webster.com/dictionary/reproductive%20rights> Accessed 11 Nov. 2021.

[ii] Dr. Carmel Shalev, “Rights to Sexual and Reproductive Health – the ICPD and the Convention on the Elimination of All Forms of Discrimination Against Women” CEDAW

[iii] J.N. Erdman, R.J. Cook, in International Encyclopedia of Public Health, 2008

[iv] “Reproductive Rights are Human Rights”, A Handbook for National Human Rights Institutions, UNFPA, The Danish Institute for Human Rights, United Nations Human Rights Office of the High Commissioner.

[v] UNFPA Annual Report, 2016.

[vi] Gauri Pawsey, “Challenging The Status Quo Of Sex Education in India” Feminism In India. (14 Dec 2020)

<https://feminisminindia.com/2020/12/14/challenging-the-status-quo-of-sex-education-in-india/> Accessed 12 Nov. 2021

[vii] Kalpana Apte, “Sexual Health largely neglected, reproductive health not a priority in policy discourse” Social Story. (27 June 2019)

<https://yourstory.com/socialstory/2019/06/sexual-health-reproductive-health-policy-discourse/amp> Accessed 12 Nov. 2021

[viii] Family Planning, United Nations Population Fund.

[ix] Ganatra B, Gerdts C, Rossier C, Johnson Jr B R, Tuncalp Ö, Assifi A, Sedgh G, Singh S, Bankole A, Popinchalk A, Bearak J, Kang Z, Alkema L, “Global, regional, and subregional classification of abortions by safety” 2010–14: estimates from a Bayesian hierarchical model. The Lancet (September 2017)

[x] Say L, Chou D, Gemmill A, Tunçalp Ö, Moller AB, Daniels J, Gülmezoglu AM, Temmerman M, Alkema L, “Global causes of maternal death: a WHO systematic analysis” Lancet Glob Health. (Jun 2014)

[xi] Amrtansh Arora, “Centre notifies new rules allowing abortion till 24 weeks of pregnancy in case of minors, rape survivors” India Today. (13 October 2021, New Delhi) <https://www.indiatoday.in/india/story/abortion-new-rules-law-rape-survivors-24-weeks-pregnancy-1864487-2021-10-13> Accessed on 14 Nov. 2021

[xii] Priti Patel, “Forced Sterilization of women as discrimination” Public Health Reviews. (2017)

[xiii] “United Nations agencies call for a ban on virginity testing” World Health Organization. (17 October 2018. Geneva)

<https://www.who.int/news/item/17-10-2018-united-nations-agencies-call-for-ban-on-virginity-testing> Accessed on 13 Nov. 2021

[xiv] “Eliminating Female Genital Mutilation” World Health Organization. <https://www.un.org/womenwatch/daw/csw/csw52/statements_missions/Interagency_Statement_on_Eliminating_FGM.pdf> Accessed on 14 Nov. 2021

[xv] “Status of human rights in the context of Sexual Health And Reproductive Rights In India”, National Human Rights Commission. (April 2018)

[xvi] Rakhi Acharyya, “Sec Education in India: Importance, statistics, myths, issues” (2 April 2019)

<https://www.careerizma.com/blog/sex-education-india/> Accessed on 14 Nov. 2021

[xvii] Adam Liptak, J. David Goodman, and Sabrina Tavernise, “Supreme Court, Breaking Silence, Won’t Block Texas Abortion Law” The New York Times. (1 Nov 2021)

<https://www.nytimes.com/2021/09/01/us/supreme-court-texas-abortion.html> Accessed on 14 Nov. 2021

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