The document discusses women's autonomy over their reproductive rights from an international legal perspective. It summarizes several landmark court cases that established privacy rights and legalized abortion. These include Griswold v. Connecticut, Roe v. Wade, and recent Indian cases recognizing women's reproductive autonomy. However, it notes that in some cases, courts have overridden women's decisions, citing responsibilities to potential life. The document also examines domestic laws around abortion and arguments regarding expanding access. Overall, it analyzes the tension between women's right to choose and restrictions imposed in the name of fetal rights or population concerns.

1. Rights over Women’s Bodies:
International Legal Perspective

2. Woman’s Autonomy: History of few
path breaking cases
 Griswold v Connecticut (1965) protects the liberty of married couples to buy and
use contraceptives without government restrictions.
 “Penumbras of rights”: While the Court explained that the Constitution does not
explicitly protect a general right to privacy, the various guarantees within the Bill of
Rights create penumbras, or zones, that establish a right to privacy.
 Roe v. Wade (1973) ruled unconstitutional a Texas law that banned abortions
except to save the life of the mother. The Court ruled that the states were forbidden
from outlawing or regulating any aspect of abortion performed during the first
trimester of pregnancy, could only enact abortion regulations reasonably related to
maternal health in the second and third trimesters, and could enact abortion laws
protecting the life of the fetus only in the third trimester

3.  Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors..: denials of maternal
health care to two women living below the poverty line. The Court stated that
 “these petitions focus on two inalienable survival rights that form part of the
to life: the right to health (which would include the right to access and receive a
minimum standard of treatment and care in public health facilities) and in
particular the reproductive rights of the mother.” Citing CEDAW and ICESCR, the
decision held that “no woman, more so a pregnant woman should be denied the
facility of treatment at any stage irrespective of her social and economic
background…This is where the inalienable right to health which is so inherent in
in the right to life .
 Sandesh Bansal v. Union of India, a public interest litigation seeking accountability
for maternal deaths, recognizing that “the inability of women to survive
and child birth violates her fundamental right to live as guaranteed under Article
21 of the Constitution of India” and “it is the primary duty of the government to
ensure that every woman survives pregnancy and child birth

4.  Devika Biswas v. Union of India & Ors.(2016) :recognized women’s
autonomy and gender equality as core elements of women’s
constitutionally-protected reproductive rights. Unequivocally held that
Article 21 includes the “reproductive rights of a person.”
 This decision marks a significant step forward from past Supreme Court
cases which have justified violations of reproductive autonomy due to
concerns about population growth Javed and Others v. State of Haryana,
A.I.R. 2003, State of Haryana and Others v. Smt. Santra, (2000)
 The State of Maharashtra Court on Its Own Motion Lajja Devi v. State
an unborn foetus is not an entity with human rights. The pregnancy takes
place within the body of a woman and has profound effects on her health,
mental well-being and life

5. Reproductive Rights
 The WHO defines reproductive rights as follows:
 “Reproductive rights rest on the recognition of the basic right of all
couples and individuals to decide freely and responsibly the number,
spacing and timing of their children and to have information to do so, and
right to attain the highest standard of sexual and reproductive health.
They also include the right of all to make decisions concerning
reproduction free of discrimination, coercion and violence.”

6.  Autonomy over her body:
 Autonomy: mentally competent adult seeks a health service, there is no need for an
authorization from a third party
 Ghosh vs. Ghosh divorce case 2007: “If a husband submits himself for an operation of
sterilization without medical reasons and without the consent or knowledge of his wife
and similarly if the wife undergoes vasectomy (read tubectomy) or abortion without
medical reason or without the consent or knowledge of her husband, such an act
the spouse may lead to mental cruelty.”
 Significant in context of marital rape as well: The court also ruled that a refusal to
sex with one’s spouse and a unilateral decision to not have a child would also
to mental cruelty..
 It implies that when a woman seeks abortion or sterilization on her own and if her
husband is not informed or does not consent, the very act of the woman could be cited
by her husband as mental cruelty and grounds to seek a divorce. The judgement thus
hits at the very core of reproductive rights: taking a decision and seeking a service
without fear of coercion or violence.

7. What about a woman who is not mentally competent?
Suchita Srivastava v Chandigarh admn case (2006)
 Medical Board: woman "has adequate physical capacity to bear and raise the child but
that her mental health can be further affected by the stress of bearing and raising her
child." Based on these recommendations, the Punjab and Haryana High Court ruling
ordered medical termination of pregnancy.
 Appealed: the Supreme Court allowed her to continue pregnancy
 This case thus raised fundamental issues relating to consent and to the support required
while assessing consent. This case was not about abortion per se, it was about whether
the law of this country recognizes and protects the agency of a woman to take
decisions for her life and body, especially all its nuances when the woman is a
person with mental retardation (MR) or any other disability.“
 Mentally competent v mentally not competent: Legally, Medical Termination Of Pregnancy
(MTP) Act does not deal with access to abortion of women with MR, and that it wrongly
distinguishes between women with mental retardation and mental illness, leaving
the former out totally. Since SC has gone ahead to continue pregnancy but has failed to
address support mechanism and state's accountability for creating and sustaining
comprehensive and reliable support systems for her within a rights framework an
obligation under Article 12 of the UN Rights of Persons with Disabilities Convention

8.  In 2017, permission was denied for abortion to an HIV-positive rape victim
for her request to abort her 26-week-old foetus on the ground that the
High Court felt that it is the ‘Court’s responsibility to keep alive the child’.
The victim’s appeal was even rejected by the SC.
 there have been cases where the Court (State) assumes not because it is
unsafe for the mother or the child but because the State(court) assumes
charge to decide that the child, in its view, should be born

9. DOMESTIC LAWS
 Under the Indian Penal Code, 1860, voluntarily terminating a pregnancy is a criminal
offence.
 The Medical Termination of Pregnancy Act, 1971 allows for aborting the pregnancy by
medical doctors (with specified specialisation) on certain grounds.
 The law on abortion in India is governed primarily by Sections 312-316 of the Indian
Penal Code (IPC) and the provisions of the Medical Termination of Pregnancy
(MTP) Act, 1971. The IPC provisions criminalise abortion; the person undertaking the
abortion as well as the doctor (or registered medical practitioner) facilitating the
abortion are liable to be prosecuted.
 However, the government enacted the MTP Act as an exception to the IPC
to exempt medical practitioners from criminal liability only if they terminate the
pregnancy as per Sections 3 and 5 of the Act.

10. Time since
conception
Requirement for terminating pregnancy
MTP Act ,
1971
MTP (Amendment) Bill, 2020
Up to 12 weeks Advice of one
doctor
Advice of one doctor
12 to 20 weeks Advice of two
doctors
Advice of one doctor
20 to 24 weeks Not allowed Two doctors for some categories
of pregnant women
More than 24 weeks Not allowed Medical Board in case of
substantial foetal abnormality
Any time during the
pregnancy
One doctor, if immediately necessary to save pregnant
woman's life
Changes proposed in conditions for terminating a pregnancy at different gestational periods

11.  Many pragmatic steps have been taken by the passage of the bill such as
increasing gestational period and securing confidentiality of woman.
 Explanation 1.—For the purposes of clause (a), where any pregnancy
as a result of failure of any device or method used by any woman or her
partner for the purpose of limiting the number of children or preventing
pregnancy, the anguish caused by such pregnancy may be presumed to
constitute a grave injury to the mental health of the pregnant woman
 It has been modified to substitute woman in place of married woman facing
unwanted pregnancy. In modern times when live-in relationships and living
independently is a part and parcel of freedom of choice and liberty,
recognizing the right of not continuing with pregnancy even if the woman is
unmarried is certainly pathbreaking.

12. ISSUES WITH IT?
 Beyond 24 weeks, permission from a medical board would be needed. The medical board
supervising the termination of the pregnancy beyond 24 weeks should include a gynaecologist, a
paediatrician and a radiologist.
 There’s no clarity as to who would ensure access to the medical board and no mention of
financial support that might be needed to contact the medical board.
 Also, how can the presence of so many specialists be assured in regions where access to
healthcare continues to be an issue?
 A Pratigya Campaign study of MTP cases between 2016 and 2019 showed that courts rely largely
on medical board opinions, which take into account various factors, including viability of the
foetus. With diverse composition of the boards as well as a lack of uniform jurisprudence on
abortions, it will be impossible to reach a decision quickly, and this could result in
pregnancies reaching advanced gestational age before termination is permitted, if at all
 Moreover, the Bill considers only eugenic reasons for terminations after 24 weeks of gestation. If
safe abortions can be performed at any stage of the pregnancy in case of foetal
“abnormalities”, then why not permitted on other grounds, such as a sudden change in
circumstances due to separation from or death of a partner, or a change in financial
situation, domestic violence, etc.

13.  The upper limit of termination of pregnancy to 20-24 weeks has been extended for
‘special categories of women’ which will include ‘vulnerable women’ such as survivors of
rape and incest, women with disabilities, minors etc.
 This doesn’t take into account the experiences of other marginalised people such as
migrant workers, displaced persons, trans and non-binary people, people who
experience intimate partner violence, among others. Lack of access to timely diagnosis
and information can also be factors for seeking termination of pregnancy beyond 24
weeks.

14. WOMAN’S AUTONOMY: THIRD PARTY
INTERVENTIONS
 More so, there have been cases where the Court(State) assumes not because it is unsafe for
the mother or the child but because the State(court) assumes charge to decide that the child,
in its view, should be born. In 2017, permission was denied for abortion to an HIV-positive
rape victim for her request to abort her 26-week-old foetus on the ground that the High
Court felt that it is the Court’s responsibility to keep alive the child. The victim’s appeal was
even rejected by the Apex Court.
OTHER FACTORS SUCH AS FINANCIAL BURDEN KEPT OUT
 In this way, the financial burden that the family has to go through is also undermined. “The
quality of life of such newborns and mental trauma to the parents must be considered before
turning down a case completely citing the law as the reason”

15. The Article 14 scrutiny: Unreasonable classification and
arbitrary distinction of “women’s mental health”
 Explanation 1.—For the purposes of clause (a), where any pregnancy occurs as
a result of failure of any device or method used by any woman or her partner
for the purpose of limiting the number of children or preventing pregnancy,
the anguish caused by such pregnancy may be presumed to constitute a grave
injury to the mental health of the pregnant woman
 Explanation 2.—For the purposes of clauses (a) and (b), where any pregnancy
is alleged by the pregnant woman to have been caused by rape, the anguish
caused by the pregnancy shall be presumed to constitute a grave injury to the
mental health of the pregnant woman.

16.  A total of 23,000 die each year due to unsafe abortion with thousands more experiencing serious
health complications according to the WHO. Legal restrictions on abortion do not result in fewer
abortions, instead they compel women to risk their lives and health by seeking out unsafe abortion
care.
 In the 2016 Irish case, the UN HRC found that since the Irish laws ban abortion in cases of fatal
foetal abnormalities, it stands violative of ICCPR.
 Examples of spouse and judicial authorizations in Taiwan, Rwanda, Japan and Bolivia.
GLOBE’S TAKE

17. IMPACT OF COVID: THE ESSENTIAL V.
NON-ESSENTIAL DEBACLE
 During the pandemic, it was shocking to know that the United States, which is
considered to be one of the most developed nations suspended or delayed
abortion categorizing abortion as elective right or even ‘non-essential’. Governors
suspended medical and surgical abortion and surgical abortion only in some
jurisdictions. It had been argued at the time when the pandemic set in, that
abortion is considered to be an ‘outside’ health care service under the idea of
abortion exceptionalism wherein therapeutic abortion are favoured as against
elective abortions
 Interview with Dr Setya, MD and HOD OBGY Apollo Hospitals Noida: “Lots of
abnormal fetuses were not diagnosed and they could not be aborted also due to
the time slot being over”

18. Poland: woman’s autonomy and State’s(Church)
intervention on account of eugenic practices
 New Catholic Encyclopedia :And probabilism may not be used where the life of a
human person may be involved, (this is because abortion can be considered to be
killing a living being which is a sin) and so the human being must be treated as a
person from conception.
 Poland: 98 percent of the legal abortions each year in Poland owing to fatal
defects in foetus, which means the new ruling is a near complete ban on abortions
in the conservative country. Does a ban really stop abortion? And even if the State
thinks it does, would it not hamper a woman’s dignified life and lead her life which
is not her’s but State’s.

19. Oklahoma Heartbeat Bill passed on 25th February 2021: Right to bear arms has more
value than a woman’s right to abort
 Mass shootings, right to possess arms and ban on abortions: Are we really
protecting “right to life” lest right of a woman over her body?
 S.B. 918 is set to immediately outlaw abortions in Oklahoma if the Supreme
Court were ever to overturn the Roe v. Wade precedent.
 S.B. 631 reaffirms in state law that the Second Amendment right to bear arms
"shall not be infringed" by federal, state or local authorities.
 A USA Today Analysis of Gun Violence Archive statistics from 2020 shows that
mass shootings surged by 47%, as many states reported unprecedented
increases in weapons-related incidents. Recently in Feb 2021 only mass
shootings took place.

20.  It is not unknown that woman resort to illegal ways of abortion as out of the approximately
15.6 million abortions in India, 12.5 million take place outside established public or private
healthcare facilities. Clandestine methods often resorted to.
 Encouraged by the fact that women is still considered to be subject to decisions other than
her own. India is estimated to have 63 million fewer women since sex determination tests
took off in the 1970s.
In 1994, with the passage of the Pre-Conception and Pre-Natal Diagnostic Techniques Act, the
Indian government made it illegal to reveal the sex of an unborn child except for strictly medical
purposes. Indian police regularly arrest gangs who offer tests to pregnant women, often
charging up to £400. (Saudi Arabia Study by King Abdullah University)
More of a doctor centric legislation and more to curb population than to empower women (See
Statement of Objects and Reasons of Original Act)
Banning Abortion Doesn’t Stop It From Happening — It
Just Drives It Underground.

21. SUGGESTIONS AND CONCLUSION
 Feminist internationalism: Global equity on reproductive rights
 Abortion should have the least control of the State, to the matters where regulation
is necessary for safe and smooth carrying of it.
 Developing countries: 93% of such countries offer restrictive laws
 The route to safe and equal abortion laws to whoever undergoes pregnancy
including women, transgender and non-binary lies in guaranteeing them with
secure abortion access, safer use of modern contraceptives, availability of medical
abortion drugs in primary healthcare facilities, complete autonomy on abortion on
request, and postabortion services. In rural areas, even if the law doesn’t mandate
spouse’s consent, it has been seen that the concept of abortion being confidential
and autonomous is hugely missing.

22.  It is suggested that the definition of ‘termination of pregnancy’ and ‘vulnerable women’ be specified as well as
expanded so as to further purposive interpretation of beneficial legislation.
 Furthermore, including Ayurvedic, Unani and like legitimate practitioners by establishing standard guidelines
within the definition of registered medical practitioners will go a long way in eradicating clandestine methods
of abortion.
 Even after five decades of the original act we have kept the original beneficiaries away from the reaps of the
beneficial legislation.
 After all, it is the woman who has autonomy over her body.
 As a recommendation, it shall be better if the government instead of keeping the ambit of ‘vulnerable women’
narrow in respect of which upper gestational period is proposed to be increased from 20 to 24 weeks, be
expanded to include in its realm so as to include not just rape and incest survivors and differently abled women
but woman of every kind instead of confining it to the whims of a definition.
 Mere omission to fall in any of the specified categories can prove to be disastrous if the woman fails to adhere
to any of the defined vulnerability but the vulnerability of being pregnant and not being able to abort for this
reason alone.

23. THANK YOU!!