Table of Contents
Introduction
Article 21 of the Indian Constitution is the cornerstone that protects the right to life and personal liberty. It encompasses one’s control over their bodies and decisions, including their reproductive choices. ‘Compulsory pregnancy,’ on the other hand, refers to legal or social barriers that restrain an individual from terminating pregnancy and to continue it against their own will, comprising laws limiting access to abortion or mandatory continuation of pregnancy. Thus, there continues a battle between Article 21, which guarantees personal liberty, and ‘compulsory pregnancy’ that infringes on this right by the continuation of pregnancy or the restraint on abortion.
This article examines whether Article 21 of the Constitution affords reproductive choices the status of a fundamental right. The relevance of bodily autonomy and integrity has come to the forefront due to increased debate around abortion and reproductive choices. Judicial interpretations play a key role in determining the impact of the continuation of pregnancy or restriction on abortion, which hampers personal liberty.
Constitutional basis of reproductive choice
The jurisprudence about Article 21 has developed in India through judicial interpretations as not only including the right to life but also various facets of personal liberty such as privacy, dignity, and bodily autonomy. In Maneka Gandhi vs. Union of India (1978) 1 SCC 248, the Hon’ble SC ruled that any procedure depriving an individual of their personal liberty must be ‘fair, just and reasonable’, thus expanding the scope of personal liberty beyond physical freedom to include and interpret it as a substantive right. In Suchita Srivastava vs. Chandigarh Administration (2009) 9 SCC 1, the Court recognized a woman’s right to make decisions regarding her pregnancy as being integral to her personal liberty and dignity under Article 21 of the Constitution, considering forced continuation of restrictive abortion services as an infringement on her fundamental right. Also, in K.S. Puttaswamy vs. Union of India (2017) 10 SCC 1, the Court recognized bodily autonomy within the right to privacy, stating that the Constitution protects personal choices beyond state intrusions. The privacy referred to in this judgment is inseparable from dignity and one’s choices over their bodies.
Thus, reproductive choices form an essential part of Article 21 since they encompass control over one’s body, maintenance of dignity, and making decisions beyond state coercions. The denial of reproductive autonomy through compulsory pregnancy or restrictive abortion laws infringes privacy, dignity, and liberty guaranteed by Article 21 of the Constitution, making it a natural and necessary extension of Article 21 jurisprudence.
Compulsory pregnancy: Legal and Ethical Implications
In the Indian context, the Medical Termination of Pregnancy (MTP) Act, 1971 regulates conditions under which abortion is permitted. The impediments present in it, such as procedural delays, legal barriers, or restrictive interpretations of the Act, can coerce an individual to carry a pregnancy against their will, infringing upon their right to bodily autonomy and integrity. This could have a psychological harm on a woman as it could expose her to trauma, health risks, and long-lasting psychological distress.
In the international context, the Supreme Court in the case of Roe v. Wade, 410 U.S. 113 (1973), recognized the right to abortion as a constitutional right protecting women’s reproductive choices from state influence based on privacy and liberty. The global framework and conventions like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the International Covenant on Civil and Political Rights (ICCPR) recognize reproductive rights as critical human rights, including the right to make decisions regarding childbearing free from coercion, violence, or discrimination.
The ethical tension lies between the state’s protection of foetal life and a woman’s autonomy over her body and reproductive choices. The State’s interest in protecting a prenatal life might supersede a woman’s bodily integrity and mental well-being. It requires a balanced and nuanced approach between these, prioritizing individual autonomy and health above all.
Judicial recognition and Limitation in India
The jurisprudence of Indian courts regarding women’s right to abortion and reproductive autonomy of women under Article 21 has developed with inconsistent rulings. In the judgment of Suchita Srivastava vs. Chandigarh Administration (2009) 9 SCC 1, recognized reproductive choice and consent to abortion as fundamental rights, construing Article 21. A woman’s consent is fundamental in terminating pregnancy, and state paternalism (parens patriae powers) over her bodily autonomy was rejected. The court recognized a ‘qualified right’ to abortion governed by the Medical Termination of Pregnancy (MTP) Act, 1971, which places a gestational limit of 20 weeks for undergoing abortion and conditions for such abortions. Also, in cases where this time frame is exceeded, it sets conditions for mandatory approval from medical boards.
In the recent judgment of X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi, (2023) 9 SCC 433, the court expanded the ambit of persons to whom the right to abortion is present to include unmarried girls and minors in its purview, reflecting changing societal attitudes. It suffers from procedural gaps in the form of requisition of mandatory expert board opinions that keep delaying abortion. The exercise of one’s reproductive choice is restrained by state-imposed gestational limits and norms to be followed, and moral considerations regarding abortion.
This needs to be resolved by incorporating legal statutes and judicial interpretations that are in line with constitutional principles of autonomy and dignity, reducing state overreach through compulsory procedural delays that infringe reproductive rights and fundamental liberties.
Reproductive choice as a constitutional right under Article 21
In the Indian jurisprudence revolving around Article 21, reproductive choice is seen as inseparable from dignity, privacy, and autonomy as evolved through cases of Maneka Gandhi, Suchita Srivastava, and Puttaswamy. Right to reproductive freedom must encompass both- right to conceive and the right not to conceive. Partial recognition results in infringement of autonomy and compulsory pregnancy. The court views denial of either right as an infringement on bodily autonomy and liberty, which the State could not supersede.
Reproductive justice, keeping changing societal conditions in mind, has been linked to equality under Articles 14 and 15, which address systematic barriers like discrimination, poverty, and access limitations that have a profound impact on marginalized women, both mentally and physically.
Conclusion
In conclusion, Article 21 jurisprudence firmly establishes reproductive choice as a cornerstone of dignity, privacy, and bodily autonomy, rendering compulsory pregnancy an unconstitutional infringement on personal liberty. From Maneka Gandhi’s expansive liberty to Puttaswamy’s privacy shield and Suchita Srivastava’s recognition of consent, Indian courts affirm women’s decisional freedom over conception and non-conception alike. Yet, MTP Act barriers and judicial inconsistencies perpetuate state control, echoing global tensions like Roe-Dobbs.
Embracing reproductive justice integrates Articles 14 and 15, dismantling socio-economic inequities for true equality. Legislative reform must prioritize autonomy over fetal interests, ensuring no woman faces coerced gestation. This evolution honors constitutional ethos, safeguarding dignity for all.
This article is authored by Ms. Aarya Singh, student at Chanakya National Law University, Patna.
All efforts are made to ensure the accuracy and correctness of the information published at Legally Flawless. However, Legally Flawless shall not be responsible for any errors caused due to oversight or otherwise. The users are advised to check the information themselves.
