Courtesy: Manasvi Agarwal
Reproductive rights lie at the heart of personal liberty, bodily autonomy, and gender equality. In India, these rights have been recognized not merely as statutory enactments, but as enforceable fundamental rights incorporated under Article 21 of the Constitution of India. Over the past decade, the Supreme Court of India has played a transformative role in expanding the scope of reproductive autonomy, particularly through interpretation of laws relating to abortion, consent, and maternal health.
The High Courts, notably the Allahabad High Court, have acted swiftly in cases involving sexual assault survivors, minors, and unmarried women, ensuring access to safe and lawful termination of pregnancies through their writ jurisdiction under Article 226 of the Constitution of India upholding the reproductive rights of women. In this article, we look at the reproductive rights and their legislative foundations, and we will deal with complex questions which have come up before the constitutional courts.
Legal Framework dealing with Reproductive Rights
Right to sexual and reproductive health encapsulate a range of rights, which include right to make decisions concerning reproduction, maternity benefits, and right to number and spacing of children, among other things. Reproductive rights are now recognized as part of several intersecting domains of international human rights law viz. the right to health, right to privacy, right to equality and non-discrimination and the right to dignity.
In the landmark case of Suchita Srivastava vs. Chandigarh Administration, the Hon’ble Apex Court held that the the right of a woman to make reproductive choices and held that such a right is a facet of Article 21 of the Constitution of India.
In addition to the constitutional provisions, the Parliament of India has enacted statutes in force, which have been amended time to time. These include the Medical Termination of Pregnancy (MTP) Act, 1971 which aims to provide safe and legal access to abortion services for women and to reduce maternal mortality from unsafe abortions, the Maternity Benefit Act, 1961 which aims to regulate the employment of women in certain establishments and to provide maternity benefits such as paid leave, nursing breaks, and job protection, among other legislations. Protection of Children from Sexual Offences Act, 2012 provides for Medical Care Rights under Section 27 of the Act wherein a child victim is entitled to emergency medical care, which includes treatment for pregnancy resulting from rape.Medical care must be provided immediately and free of cost.Furthermore, no delay is allowed due to pending police formalities.
DOES A WOMAN HAVE A CONSTITUTIONAL RIGHT TO MATERNITY LEAVE?
Every woman is vested with a constitutional right to maternity leave, a facet of maternity benefits, which flow from Article 21 of the Constitution of India which encapsulates right to bodily autonomy, right to privacy, and right to health. The Supreme Court in K. Umadevi v. State of Tamil Nadu1 held that a woman can claim maternity leave for a child who is even technically her third, if she does not have custody of the first two children and the third child is her first from a subsequent marriage.
Section 5 of the Maternity Benefits Act, 1961 provides for 26 weeks of paid maternity leave for the first two children. For the third child and beyond, maternity leave is limited to 12 weeks.It is applicable to women who have worked for at least 80 days in the 12 months preceding the expected date of delivery.
The Court interpreted Section 5 of the Maternity Benefit Act, 1961 and held that-
“19. Grant of maternity benefit is per se not denied to a woman employee having more than two children. Following amendment in the year 2017, a restriction has been introduced in Section 5 by inserting a proviso under sub-section (3) as to the entitlement of the period of maternity leave. A woman employee having less than two surviving children is entitled to a maximum period of benefit i.e. 26 weeks and for a woman employee having two or more than two surviving children, the benefit is restricted to 12 weeks. Thus, there is no ceiling or cap on the number of children to claim maternity benefit. Only thing is that in case of a woman employee having two or more than two surviving children seeking maternity leave, period of the 20 benefit is reduced: from a maximum period of 26 weeks to a maximum of 12 weeks.”
The Court acknowledged that the State’s two child norm aims to promote population control but clarified that it must not override a woman’s constitutional rights. It held that the State must harmonise population policy with the right to maternity benefits in a rational and purposive manner.
CAN ALL WOMEN INCLUDING UNMARRIED WOMEN ACCESS ABORTION UPTO 24 WEEKS?
Yes. The Supreme Court in X v. Principal Secretary, Health and Family Welfare Dept., GNCTD2, ruled that unmarried women have equal rights as married women to access abortion services under the MTP Act,1971, up to 24 weeks. As per the legislation in force, the following is the applicable law for medical termination of pregnancy:
- Upto 12 weeks: No permission is required upto 12 weeks, hence, the pregnancy may be terminated in accordance with the procedure prescribed by law without any permission from any registered medical practitioner.
- From 12 to 20 weeks: It requires the permission of one registered medical practitioner,on the ground that the continuation poses a risk to the woman’s physical or mental health as in cases of rape, or contraceptive failure (including unmarried women), or if there is a substantial risk of the child being abnormal.
- 20 to 24 weeks: It requires the opinion of two registered medical practitioners. Termination applies only to certain categories of women specified in Rule 3B of Medical Termination of Pregnancy Rules, 2003.
The Court clearly held that Rule 3B should be read expansively, not restrictively. The legislature’s intention was to help all women who face sudden changes in circumstances, not just the specific categories listed. Therefore, unmarried women whose relationship status or personal situation changes are also entitled to extended abortion access.
“93. From the object and purpose of the MTP Act, its overall scheme, and the categories of women specified in Rule 3B, it is evident that it was not the intention of the legislature to restrict the benefit of Section 3(2)(b) and Rule 3B only to women who may be confronted with a material alteration in the circumstances of their lives in the limited situations enumerated in Rule 3B. Rather, the benefit granted by Rule 3B must be understood as extending to all women who undergo a change of material circumstances.”
“118. To give Rule 3B a restrictive and narrow interpretation would render it perilously close to holding it unconstitutional, for it would deprive unmarried women of the right to access safe and legal abortions between twenty and twenty-four weeks if they face a change in their material circumstances, similar to married women.”
CAN A MINOR RAPE SURVIVOR DECIDE TO CONTINUE HER PREGNANCY?
Yes. The Supreme Courtin X v. Principal Secretary, Health and Family Welfare Department (2022) held that a minor who becomes pregnant due to sexual assault (including rape) can choose to continue the pregnancy, and her informed decision must be respected over others’ opinions, including guardians or medical boards.
In Suchita Srivastava & Anr v. Chandigarh Administration3, the Supreme Court of India held that a woman’s right to make reproductive choices is an essential part of her bodily autonomy and personal liberty enshrined under Article 21 of the Constitution of India. This includes the right to carry a pregnancy to term, terminate it, and make decisions about motherhood free from coercion. Relevant portion is reproduced below:
22.“There is no doubt 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 rights 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.”
The Court ruled that even a woman with intellectual disabilities (who is not “mentally ill” under the MTP Act) must be allowed to exercise her own reproductive choice, and her consent is mandatory before any medical termination of pregnancy.
18. “As per Section 3(4)(a) of the Medical Termination of Pregnancy Act, 1971, the consent of the pregnant woman is imperative. The only exception is in the case of a minor or a mentally ill person. In all other cases, the medical practitioner must seek the consent of the woman herself.”
The Court further held that mental retardation is not the same as mental illness. A woman with intellectual disability can still understand and decide about her pregnancy.
20. “There is a clear distinction between mental retardation and mental illness. A mentally retarded person may still possess the capacity to make decisions concerning pregnancy, unless proven otherwise.”
ALLAHABAD HIGH COURT ON REPRODUCTIVE RIGHTS MATTERS
The Allahabad High Court exercises writ jurisdiction under Article 226 of the Constitution to issue writs to enforce fundamental rights, constitutional rights, and statutory rights vested in individuals. Hence, the Allahabad High Court is empowered to issue directions for the enforcement of fundamental rights, including the right to dignity, privacy, and reproductive autonomy under Article 21 of the Constitution of India.
In cases involving abortion beyond 24 weeks, minor rape survivors, or denial of maternity benefits, the Allahabad High Court may intervene by directing the concerned authority to act in accordance with law and constitutional principles enforcing the reproductive right of the woman.
In Ab (2021) vs. State of U.P. and 2 others, the Allahabad High Court, in exercise of its writ jurisdiction, directed for termination of an undesirable pregnancy of a rape victim, placing reliance on Suchita Srivastava (supra).
In X vs. State of U.P. and 3 others, the Hon’ble Allahabad High Court found that the Medical Colleges including the Chief Medical Officers of the Districts and the doctors that are appointed as part of the Medical Board for examination of the victim are not properly informed about the procedure to be followed while carrying out the examination of the victim and the subsequent medical termination, if ordered. It further noted that provisions have been made by the Legislature in form of the Medical Termination of Pregnancy Act, 1971; Medical Termination of Pregnancy Rules, 2003 and the Medical Termination of Pregnancy Regulations, 2003, and the Supreme Court in various judgments has elaborated the procedure to be followed in such cases. Hence, the Hon’ble Allahabad High Court directed for issuance of a circular providing a comprehensive Standard Operating Procedure to be followed by the Chief Medical Officers and the Medical Boards in cases of medical termination of pregnancy.