Equality and individual autonomy in reproductive rights: India shows the way


Fishing couple with pregnant woman and nets. Photo: UN Women/Betsy Davis
Fishing couple with pregnant woman and nets. Photo: UN Women/Betsy Davis

Authors: Susan Ferguson and Andrea Wojnar

Women’s consent matters – that’s the top takeaway from the Indian Supreme Court (SC)’s judgment on abortion for all women on International Safe Abortion Day. In a bold and landmark judgement on September 29, India’s top court interpreted the Medical Termination of Pregnancy (MTP) Act and Rules to reassert the reproductive rights for women and individuals with diverse gender identities who need access to safe and legal abortion services.

The ruling cannot be viewed in isolation. It builds upon progressive government initiatives undertaken in the last five decades to recognise the bodily and reproductive autonomy of Indian women, starting with the legalisation of abortions under the MTP Act, 1971. Last year, the Act was amended in a historic move, raising the time limit of abortions from 20 to 24 weeks. The amendment also added several categories of women eligible for abortions (including rape survivors, and women with disabilities).

The verdict of September 29 is timely and remarkable for three important reasons. First, the 75-page document is heavy on the narrative of choice, bodily and reproductive autonomy – and a woman’s right to decide the fate of her pregnancy. The United Nations Fund for Population (UNFPA)’s 2022 State of the World Population report states that of all the pregnancies in the world, nearly half are unintended. This is an invisible crisis. The unmet need for family planning in India is 9.4 per cent as per the 2019-21 National Family and Health Survey. Therefore, whether to be pregnant is not a choice available to these women. But the Indian ruling recognises unwanted pregnancy as a life-altering reproductive choice— a health issue that leads to unsafe abortions and maternal deaths, and a human rights issue that is both the cause and result of gender discrimination and inequality.

Second, the ruling also underlines that “patriarchal principles about what constitutes permissible sex” cannot be the basis of any law. And finally, it will probably go down in history as the first official recognition of marital rape in India as the ruling said that the “meaning of rape must include marital rape,” within the ambit of the MTP Act. This is significant as the SC is currently deliberating on a petition to criminalise marital rape.

For now, however, the ruling is not just a collective victory for Indian women but is also important in the global context of the abortion debate, especially against the backdrop of a similar debate in the US, the world’s other largest democracy. In June 2022, the US Supreme Court in a controversial ruling overturned the Roe v. Wade ruling that made abortion a constitutional right for American women. The Indian ruling can serve as a beacon for others of progressive legislation and judgments to protect and strengthen women's rights and wellbeing.

Women’s access to safe and legal abortions have been debated in India for a long time. According to a Lancet study 15.6 million abortions took place in India in 2015 of which 81 per cent happened at home or outside health facilities. Unsafe abortions remain the third leading cause of maternal mortality in India.

The ruling embodies the visionary global commitments made at the International Conference on Population and Development in 1994, that emphasized the fundamental role of women’s empowerment and sexual and reproductive health and rights, as critical to sustainable development. Historically, the Indian government has proceeded cautiously in order to curb the practice of selective abortions of female foetuses owing to continuing son preference in the country especially with the Pre-Conception and Pre-Natal Diagnostic Techniques (PC&PNDT) Act.

Further, minors or their guardians, fear criminal proceedings when seeking abortion, under the Protection of Children from Sexual Offences (POCSO) Act, 2012 that mandates registered doctors to report such cases to the police. Owing to this, they often opt for clandestine abortions by unqualified doctors. However, the recent ruling has attempted to bridge this gap between the POCSO Act and the MTP Act, by exempting doctors from disclosing to the police the identity of minors who seek abortions.

We laud the Indian government and the SC for this momentous recognition of women’s rights as it aligns with the UN’s core belief that reproductive rights are integral to women’s rights. The next steps along the road to reproductive autonomy for women in India would be to address the remaining unmet need for family planning/contraceptives and improve access to safe abortion services, including medical methods.

The UN remains committed to supporting the Government of India ensuring that all have access to sexual and reproductive health information and services that enable them to responsibly engage in mutually respectful relationships and exercise bodily autonomy.

This new ruling can be a game-changer if women are made aware of their rights and all understand that pregnancy is a choice, not an inevitability.

The article has been authored by Susan Ferguson, country representative, UN Women and Andrea Wojnar, country representative, UNFPA

Originally published on Hindustan Times on 03 October 2022.