A dominant narrative about reproductive justice in India is that it is encased in a ‘liberal’ legal framework. For example, the Statement of Objects and Reasons appended to the Medical Termination of Pregnancy Act, 1971 (MTP Act) expressly mentions the Act’s intent to ‘liberalise’ access to abortions. More recently, the 2021 amendment to that Act was also animated by the need to ‘ensure dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy.’ The Supreme Court too has been of the view that the MTP Act is a ‘progressive legislation.’ Similarly, a spate of recent legislations around reproduction, including the Assisted Reproductive Technologies Act, 2021 and the Surrogacy (Regulation) Act, 2021, have ostensibly sought to protect women and children from exploitation and harm through the use of these technologies (see here and here). Adding to these statutory mandates, the Supreme Court has recognized that the right to reproductive autonomy (see also here and here) and reproductive health are guaranteed as fundamental rights by the Constitution.
However, in reality, the legal regulation of reproduction places a range of significant and ever-increasing constraints on reproductive rights, particularly for women. Using the blunt instrument of criminal law to regulate reproduction-related decisions, the State has been increasingly seeking to control, through direct and indirect means, the exercise of their reproductive rights, that is “the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health….[and] to make decisions concerning reproduction free of discrimination, coercion and violence.”
A range of recent statutory instruments, delegated legislations and policies, as well as judicial decisions, have chipped away at these reproductive rights through cumbersome procedural requirements, extensive state surveillance and reporting norms. This also includes un-scientific standards for access to reproductive care services that are aimed at enforcing heteronormative social norms rather than enhancing rights.
Behind the facade of progressive statutory laws backed by constitutional guarantees, lies a quotidian reality of denial of effective reproductive freedom. Developments over the last 5 years in the legal regulation of reproduction substantiates our claim regarding the shrinking space for reproductive rights in the country.
From Abortion to Feticide
Despite the ostensible intent of the amendments to the MTP Act in 2021, and some progressive judgments from courts that expanded the ambit of its provisions, the basic framework for the regulation of abortion remains firmly rooted in criminal law. Women do not have a right to abortion and are at the mercy of registered medical practitioners (RMPs), medical boards, and courts, who evaluate whether they should be permitted to terminate their pregnancy. As we have noted in previous work, the criminalization of abortion, with limited exceptions, ‘shifts decision-making regarding termination of a pregnancy from the person seeking such termination to the Registered Medical Practitioner.” Our study demonstrated that “RMP’s decisions on whether to provide or withhold abortion services are influenced by a range of factors external to the health and autonomy interests of persons seeking abortion…includ[ing] a fear of getting embroiled in the legal process, general stigma around abortion, and patriarchal and ableist understandings of women’s appropriate role and behaviour in society.”
The MTP Act, including after the 2021 amendments, also places a range of registration, record keeping, and inspection requirements on RMPs, on pain of criminal penalty. In these circumstances, denial of abortion care is an easier option for most RMPs, rather than providing these services. Women seeking abortion services are often required to get permission from one or two RMPs, a medical board, and even courts. In recent cases that have reached the Supreme Court (see here and here), the Court has noted that RMPs and medical boards often stand in the way of a pregnant person’s access to abortion care, out of fear of prosecution under the MTP Act. The Court has also noted (but also participated in) the flip flops between multiple medical boards that a pregnant person seeking to terminate a late-term pregnancy often goes through because medical boards do not pay adequate regard to the health and wellbeing of the pregnant person.
When women are denied abortion care by doctors or medical boards, they sometimes approach courts for relief. In a spate of recent cases, judges have decided whether or not to permit abortion, not on the basis of the requirements within the MTP Act and Rules, but based on concerns regarding the fetus’ viability and its ‘rights.’ Medical Boards, as well as oral observations in courts, have begun using the language of feticide (see here, here, and here) to denote late-term abortion. In this reframing of abortion as feticide, and of the fetus as a ‘baby’, the rights, health, and well-being of the pregnant woman are subordinated to the rights of the unborn fetus. The viability line is also a shifting target since, with advancements in medical technologies, gestational limits for viability have been reducing. Pegging abortion care to viability thus runs the risk of ever declining access to abortion.
Punishing Procedures: PCPNDT’s Radiating Effects on Access to Sexual and Reproductive Healthcare
Abortion access is also restricted because of the entanglement of abortion with sex-selection. The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act), which criminalizes sex determination and its disclosure, requires providers of ultrasound and other diagnostic services to fill and maintain a multitude of forms and other records. Any ‘deficiency or inaccuracy’ in record-keeping contravenes specified provisions of the Act and leads to criminal liability. Ironically, the punishment for actually determining the sex of the fetus is the same as the failure to maintain proper and accurate records. Such broad-brush criminalization, and accompanying stringent punishments have a chilling effect on healthcare professionals, and as noted by the Supreme Court, this can lead to doctors withholding reproductive healthcare services.
Viewing abortion through the suspicious lens of sex selection also impacts access to abortion pills, which are the most common method of abortion in the country. The availability of abortion pills across the country has been declining because of a policy-level conflation of access to abortion with sex selection by drug authorities and authorities under the PCPNDT Act. This makes pharmacists wary of stocking such drugs for fear of being prosecuted. This conflation is also impacting access to Emergency Contraceptive Pills in states such as Tamil Nadu, even though such pills are not abortifacients at all.
Finally, states have been setting up elaborate technological infrastructure for the surveillance of reproductive health-seeking behaviour by women to counter sex-selection. Extensive registration, reporting, and monitoring requirements, not only impact the confidentiality and privacy of reproductive decision-making, but also limit access to reproductive healthcare for those who do not have the resources to inhabit a tech-forward world.
Curtailing Rights to ‘Enhance’ Rights: ART and Surrogacy
The same model of stringent and cumbersome procedures has been followed in the Assisted Reproductive Technologies (Regulation) Act, 2021 (ART Act) and the Surrogacy (Regulation) Act, 2021. After no (or very soft) regulation of these reproductive technologies for years, Parliament veered in the opposite direction and placed the provision and use of these services within the hard framework of criminal law, with a range of attendant consequences similar to those discussed in the preceding sections.
The ART Act regulates the use of assisted reproductive methods, ostensibly to protect women’s health from unscrupulous ART practitioners and clinics. However, it places a range of restrictions on who can seek ART services for having a child. These restrictions do not have a scientific basis but are rather in place to protect the heteronormative social bases and biases for reproduction. Like the PCPNDT Act, this Act too requires the filling of various forms by patients and service providers, and maintenance of these forms and records, on pain of criminal liability.
Another issue is with the guarantee of confidentiality. Section 21(e) of the Act mandates ART clinics and ART banks to keep the identity of, and information on couples and donors confidential. However, it also requires them to share this data with a National Registry established under the Act. Concerns with confidentiality, especially due to the stigma surrounding infertility, may deter couples from seeking treatment for infertility, and gamete donors from donating their gametes. It also undermines women’s fundamental right to privacy in reproductive decision-making, by closely monitoring reproductive choices, ostensibly for safeguarding their rights. As the Supreme Court has noted, ‘the right to privacy enables an individual to exercise [their] autonomy away from the glare of societal expectations…’ This autonomy is undermined by the grey area surrounding confidentiality in the ART Act.
Around the same time as the ART Act and the MTP Act amendments, the Surrogacy (Regulation) Act, 2021 was enacted, again ostensibly to protect the rights of surrogates and children born through surrogacy. The Act prohibits ‘commercial’ surrogacy, and only permits surrogacy for altruistic reasons. Thus, women can no longer be compensated for their reproductive labour. The Act also permits only heterosexual married couples and divorced or widowed women to become parents using surrogacy. Thus, this law too excludes a wide range of people who do not inhabit the heteronormative world. There are various restrictions on the surrogate as well relating to her age, and marital and childbearing status, that have no basis in any scientific assessment of her ability to work as a surrogate.
Like the PCPNDT Act and the ART Act, the Surrogacy Act imposes a series of responsibilities on the service provider, on pain of criminal liability. For example, before providing services, the surrogacy clinic has to certify that the intending couple and surrogate have obtained necessary certificates/approvals from the designated authorities under the Act. This involves multiple steps. A couple intending to avail of surrogacy first has to obtain a ‘certificate of medical indication’ from a District Board, and a ‘certificate of essentiality’ from the Appropriate Authority under the Act. To apply for the latter, the couple needs to obtain an order from a Judicial Magistrate of the First Class regarding the custody and parentage of the child born through the surrogacy arrangement. The couple also has to produce an insurance policy in favour of the surrogate. Only upon reviewing all of these documents, is the Appropriate Authority authorized to provide a ‘certificate of essentiality.’ The couple also has to obtain a certificate of eligibility from the Appropriate Authority. Similarly, the surrogate has to obtain a certificate of eligibility from the appropriate authority, which is provided after verification that the requisite conditions for eligibility as specified in the Act have been satisfied. These documents have then to be retained in the clinic for twenty-five years, and should be open to inspection at any time by the authorities under the Act. The entire procedural scaffolding is not only cumbersome, and backed by criminal sanctions, but requires anyone participating in these processes to open themselves up for unlimited state intrusion into some of the most intimate aspects of their sexual and reproductive choices and conditions, in the name of protecting their rights.
The theme of this series of articles is “backlash.” It is difficult to make the claim that the retrogression of reproductive rights in India is a result of a backlash against these rights or against women generally, since such a claim implies a certain degree of causality and intentionality, which are difficult to prove. What is abundantly clear, however, is that the legal regulation of reproduction is not placed within a framework of rights and healthcare. Rather, the dominant and increasing motivation behind the regulatory landscape is to control and subordinate reproductive rights to a range of other concerns, primarily through the instrument of criminal law. This approach creates barriers for those who provide and those who seek reproductive health services, and has the effect of increasingly restricting reproductive rights.
