Article 21 and a woman’s right to reproductive choice
A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution of India. She has a sacrosanct right to bodily integrity. In Suchita Srivastava v Chandigarh Administration [3 (2009) 9 SCC ], Supreme Court recognized that a woman’s right to reproductive autonomy is a dimension of Article 21 of the Constitution in the following words:
11. … 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 choices 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. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth-control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children. However, in the case of pregnant women there is also a `compelling state interest’ in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the provisions of the MTP Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices.
Suchita Srivastava v Chandigarh Administration [3 (2009) 9 SCC ]
In Justice K.S. Puttaswamy (Retd.) and Anr v. Union of India and Ors [(2017) 10 SCC 1] the decision of a woman to procreate or abstain from procreating has been again recognized as a facet of her right to lead a life with dignity and the right to privacy under Article 21 of the Constitution in following terms:
“298. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised.”
Justice K.S. Puttaswamy (Retd.) and Anr v. Union of India and Ors
The Bombay High Court in High Court on its Own Motion v. State of Maharashtra, [(2016) SCC OnLine Bom 8426] observed the followings:
“14. A woman’s decision to terminate a pregnancy is not a frivolous one. Abortion is often the only way out of a very difficult situation for a woman. An abortion is a carefully considered decision taken by a woman who fears that the welfare of the child she already has, and of other members of the household that she is obliged to care for with limited financial and other resources, may be compromised by the birth of another child.These are decisions taken by responsible women who have few other options. They are women who would ideally have preferred to prevent an unwanted pregnancy, but were unable to do so. If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health”
High Court on its Own Motion v. State of Maharashtra
Can Unmarried Women Terminate 24 weeks Pregnancy?
Recently in the case of X v. The Principal Secretary Health and Family Welfare Department & Anr [SLP(C) 12612 of 2022 Order dt. July 21, 2022] the Hon’ble Supreme Court was faced with the question as to whether an unmarried woman can terminate her pregnancy post 24 weeks pregnancy where the Delhi High Court had already refused termination under the provisions of the Medical Termination of Pregnancy Act 1971 (MTP Act). The High Court held that since the petitioner is an unmarried woman whose pregnancy arose out of a consensual relationship, her case is “clearly not covered” by any of the clauses of Rule 3B of the MTP Rules or Section 3 of the MTP Act.
The Supreme Court held that the High Court took a narrow view of the provisions of the MTP Act & Rules and allowed the woman to terminate her pregnancy by giving the following reasonings:
14. Prima facie, quite apart from the issue of constitutionality which has been addressed before the High Court, it appears that the High Court has taken an unduly restrictive view of the provisions of clause (c) of Rule 3B. Clause (c) speaks of a change of marital status during an ongoing pregnancy and is followed in parenthesis by the words “widowhood and divorce”. The expression “change of marital status” should be given a purposive rather than a restrictive interpretation. The expressions “widowhood and divorce” need not be construed to be exhaustive of the category which precedes it.
15. The fundamental principle of statutory interpretation is that the words of a statute must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act and the intent of the legislature. Parliament by amending the MTP Act through Act 8 of 2021 intended to include unmarried women and single women within the ambit of the Act. This is evident from the replacement of the word ‘husband’ with ‘partner’ in Explanation I of Section 3(2) of the Act.16. Explanation 1 expressly contemplates a situation involving an unwanted pregnancy caused as a result of the failure of any device or method used by a woman or her partner for the purpose of limiting the number of children or preventing pregnancy. The Parliamentary intent, therefore, is clearly not to confine the beneficial provisions of the MTP Act only to a situation involving a matrimonial relationship. On the contrary, a reference to the expression “any woman or her partner” would indicate that a broad meaning and intent has been intended to be ascribed by Parliament. The statute has recognized the reproductive choice of a woman and her bodily integrity and autonomy. Both these rights embody the notion that a choice must inhere in a woman on whether or not to bear a child. In recognizing the right the legislature has not intended to make a distinction between a married and unmarried woman in her ability to make a decision on whether or not to bear the child. These rights, it must be underscored, are in consonance with the provisions of Article 21 of the Constitution.
X v. The Principal Secretary Health and Family Welfare Department & Anr
Conclusions
Ergo:
- A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution of India.
- The decision of a woman to procreate or abstain from procreating is a facet of her right to lead a life with dignity and the right to privacy under Article 21.
- The use of the word “partner” ascribes to an intention of the Parliament to cover “unmarried woman” under the MTP Act, which is in consonance with the constitution.
- If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman’s bodily integrity and aggravates her mental trauma, which would be deleterious to her mental health.