Author – Payel Talukder a student of South Calcutta law College.
ABSTRACT:
This article is a critical study to understand the both the legal and social dimension of their rights. Special attention is given to the landmark judgments and recent judgement regarding the rights, explains the current provision given by supreme court to upheld the rights. The study gives a view of the gap between the law and the reality and concludes it with a more legal framework, improved healthcare access, and awareness of women’s right.
KEYWORDS:
Women’s right, reproduction right, fundamental right, abortion, implementation of law, women’s health.
INTRODUCTION: Reproductive rights form an essential component of women’s human rights and are deeply rooted in the constitutional principles of autonomy, dignity, and liberty. In India, these rights are not explicitly codified as a separate fundamental right but are read into the broader guarantee of the right to life and personal liberty under Article 21 of the Constitution. The legal recognition of reproductive autonomy has been further strengthened by statutory provisions, particularly the Medical Termination of Pregnancy Act, 1971, as amended in 2021.
LEGAL PROVISIONS:
Constitutional provisions -Article 21 of the Constitution of India guarantees the right to life and personal liberty, which the judiciary has interpreted to include a woman’s right to reproductive autonomy and bodily integrity. This constitutional safeguard serves as the backbone of reproductive rights, recognizing a woman’s freedom to make decisions regarding her body, including the choice to carry or terminate a pregnancy. In case of Suchitra Shrivastava v. Chandigarh administration 2009 the supreme court said that right to Reproductive is a fundamental right which related to right to liberty covered under article 21 of constitution. In justice k.s puttaswamy v. Union of India the supreme court interprets that the right of reproduction is not directly mentioned in the constitution but it is a part of liberty under article 21 and they have the right to make decisions about body, sexuality and reproductive rights
Article 19(1)(a) includes the freedom of speech and expression which also plays an important role to safeguard the women’s rights regarding reproductive rights. It provides the right of women to know and to have information about abortion, contraception and things which harm their health. Any legislative or policy-based restriction on these rights must pass the test of strict constitutional scrutiny.
MTP act 1971(amendment 2021)-The Medical Termination of Pregnancy Act, 1971, as amended in 2021, plays a vital role in operationalizing this right by providing a legal framework for safe and lawful abortion. This act (s.3) Act permits termination of pregnancy within 20 weeks by a professional medical practitioner, and in some specific cases (survivor of rape, incest)24 weeks is permissible with the advice of tow certified professional medical practitioner. Additionally, in cases of substantial fetal abnormalities, termination beyond 24 weeks may be permitted upon the approval of a Medical Board, thereby recognizing the complex and evolving nature of reproductive health decisions. Having some specific provision of the consent for abortion the law clearly recognized that there is no need of the legal consent of the parent, spouse and family members for the abortion the consent of a pregnant woman who is above 18 is necessary and enough for termination of the pregnancy. She has free choice whether to keep or terminate the pregnancy irrespective of marital status whether she is married or unmarried. In case of Suchitra Shrivastava v. Chandigarh administration 2009 the supreme court said that right to Reproductive is a fundamental right which is related to right to liberty covered under article 21 of constitution.And In case of X v. Principal secretary health and family welfare department of NTC Delhi 2022 the supreme court allowed abortion within 24 years and also said that restricting the right of abortion because of unmarried is totally unconstitutional.
Others law-Though there are some limitations in The Surrogacy regulation act 2021 and The Technology regulation act to women’s rights to be surrogate mother or to get permit for access of surrogacy the main aim of both the act is to safeguard the health and protection of women.
GAP BETWEEN THE LAW AND THE REALITY:
the violation of women’s right of reproduction is not only the health issues of women, it is a social issue that harms human dignity and legal and ethical freedoms of women. While many countries like India has legal and constitutional provision to protect the rights of women’s reproduction but sometimes the reality restricts the applicability of the law for example
Lack of awareness – though abortion is legal and permissible in India but due to lack of awareness and social stigma many pregnant women without having knowledge of their rights use unsafe methods which becomes life threatening.
Forced and coercion – due to the social stigma and the pressure of spouse, family members and society, married and unmarried both use contraception, birth control pills, even abortion without their consent even forcefully or without their knowledge which is unconstitutional and illegal.
Lack of sex education – due to lack of sufficient sex education in school The tend of getting pregnant teenagers is increasing because of that unsafe abortion and unsafe using of birth control pills, contraception are dangerous life risks for young women.
Lack of professionals- in villages and urban areas due to lack of professional certification medical practitioners and proper knowledge of education women use unsafe methods for abortion.
Conclusion:
the implementation of legal rights of women’s reproduction is primary thing the real right is the practical accessibility of the rights.in divers and populated Country like India this rights are often undermined due to lack of education and awareness, social stigma etc. India is a country where law may grant various rights to women regarding contraception, abortion, and care of their health but social stigma cultural barrier and lack of education cannot be effectively exercised.
Therefore, there is a vital need for the country like India to make a bridge between the law and the reality.
FAQ
1.Is abortion legal in India?
ANS: yes, in India abortion is legal before 24th week with the consent of the pregnant woman.
2.Do women have right to abortion?
ANS: yes, women have right to abortion before 24th week.
3.does Indian constitution has provision related to women’s right to reproduction?
ANS: Indian constitution does not have direct provision regarding women’s reproduction but supreme court interpret that women’s reproduction right is not only physical right it is a fundamental right under article 21 of the Indian constitution.
4.Is sex education a part of reproductive right?
ANS: yes, sex education is a part of reproductive right.
5. can an unmarried woman get abortion?
ANS: yes, an unmarried woman is allowed to get abortion.
6.can a woman get abortion after 20th week?
ANS: yes, an unmarried woman can get abortion before 24th week on opinion of two medical practitioner.
