Reproductive rights are defined by the World Health Organization as the rights of all couples to decide the spacing, timing, and the number of their children. It encompasses the right to get the proper information in this context in order to get the maximum level of reproductive and sexual health for oneself. If we narrow down the lens to the rights of women in terms of whether they want to have a baby or not, the debate assumes different lines in western societies and traditional societies like India. In the Western world this debate, specifically related to abortion, is centered on pro-life vs pro-choice. In India, the debate centers around the understanding of the women about the legislations like the Medical Termination of Pregnancy Act 1971, and the PCPNDT Act of 1994 the limitations imposed on her in terms of decision making and the influencers. Similarly, in terms of maternal leave, the debate in the advanced countries center around what kind of extra benefits that can be made available to the women using the maternal leave from the employers, the social organizations and the government. In India, this issue roams around whether the woman would take maternal leave or leave her career behind; long story short, it boils down to the very existence of her professional life.

In the domain of women’s rights three controversial issues have bugged the Indian legal architecture; preconception sex detection which threatens the very right of existence for women, abortion which deals with the women’s reproductive rights, and maternal leave which falls under the area of her right to health and proper care for the infant, whilst having a professional career. We will pick the discussion with the second dimension as it has many aspects to it making it a multifaceted issue. 

Till 1971, in India, the act of Abortion was criminalized under section 312 of Indian Penal code. It was more to do with not allowing women the basic right to her own reproductive health and her desire to have or not have a particular child than allowing the birth of a new-born. Extension of the gender equality enshrined in the Indian constitution was carried into people’s psyche through the early 1960s which brought forth the plight of women who had been victims of rape and were not allowed abortion. The Shantilal Shah Committee was formed, as a result, to address the issue. It recommended a law to legalize abortion in the context of women’s health in the early 1970s India. This led to the passage of the Medical termination of pregnancy Act in the Indian parliament in August of 1971. It was two years before the Roe vs Wade judgment in the USA which protected the women’s liberty in the case of abortion.

Section 3 of the MTP Act of 1971 stated that the pregnancy can be terminated in the case of four scenarios. When there is a Therapeutic indication that there is a threat to the mental and/or physical health of the woman concerned in case of continuation of the pregnancy, the abortion is legal. If there is a Eugenic indication that the newborn child would be suffering from major physical or mental disorders which can render him tremendously handicapped, then the abortion is allowed under the MTP Act 1971. If it is found through investigation that the pregnancy is the result of a rape assault on the woman, then under humanitarian condition, the abortion is allowed. In case there is a social angle to the pregnancy, such as failed contraception in the case of a married couple or in the case of a living-in couple or any consenting adult couple, then the pregnancy can be terminated. The most important rider in allowing the abortions is that the termination of the pregnancy must be done when the pregnancy is less than 20 weeks. The termination must be done in either a government hospital or a government certified hospital. As per the original Act, the process would require the involvement of two medical practitioners in case the pregnancy is more than 12 weeks, and just one practitioner in case the pregnancy is less than 12 weeks. In any case of termination of pregnancy consent of the woman alone is sufficient if she is above 18 years of age, and if she is under 18 years of age or a lunatic, then the consent of the guardian is necessary. This law has been an important stepping stone in the right direction, given the fact that UNICEF and World Bank data points out India as the country with one the highest rate of maternal deaths. 

There have been many criticisms and failures pointed towards the MTP act of 1971. Out of the almost 6.7 million abortions taking place in India per year, almost 5.7 million are illegal. Some social activists, legal experts, and observers state that the section 312 of the Indian Penal Code read with MTP Act, 1971 with all the restrictions therein (including the 20 weeks’ time limit) is in contradiction of the right to abortion and right to health which can be said to emanate from the Article 21 of the Indian constitution. There has been much advancement in the medical technologies, and despite that many features and abnormalities can be detected in the fetus only after the decisive time period of 20 weeks has passed. In this condition, there is no clause in the Act of 1971 to guide action in case the fetus has any abnormalities, but the mother’s life is not threatened. In the Nikita Mehta Case of 2008, the Bombay High court did not allow abortion as the abnormalities were detected after 20 weeks. Inserting provisions which empower women to choose to not have children have been ignored without understanding that it contributes to the lower fertility rate which is in the greater good of the country in terms of healthcare. The Chandigarh Nari Niketan case of 2012 saw the Supreme Court giving judgment against abortion for the mentally challenged young woman who was abused sexually in the Nari Niketan. It brings into light two sordid states of affairs in terms of women’s rights. First, even the mentally challenged are not safe in a place like Nari Niketan, and second that the law is at least to some extent insensitive to the plight of such victims. It is concerning since such outcomes are not expected after the landmark case of Suchita Srivastava vs Chandigarh case of 2009 which clearly defined the reproductive rights of women in terms of dignity, bodily integrity, and privacy, all of which stand violated in the case of a grave sexual assault. 

As per the recently amended version of the act, within 20 weeks, pregnancy can be terminated with the opinion of a registered medical practitioner, and the approval of two medical practitioners would be needed in cases where the pregnancies are from 20 and 24 weeks. The amended act also mentions that the termination of pregnancies up to 24 weeks would apply to specific categories of women. In dealing with the cases of pregnancies in case of failed contraceptives, the amended act takes a step forward by replacing the phrase ‘married woman or her husband’ with ‘married woman or her partner’. The amended act also mentions about the protection of the privacy of the woman by disallowing the medical practitioners to reveal the name and other details of the woman who has had her pregnancy terminated. It has become all the more relevant after the 2017 judgment by the nine-judge bench of the Supreme court in the KS Puttiswamy vs Union of India, 2012 case which states the privacy as a fundamental right grounded in the idea of the right to dignity. The amendments also raise certain important doubts which cannot be ignored in terms of women’s birthright. The sexual organs become clearly visible in the scan from the 22nd week onwards. That can allow for female infanticide by certain vile category of people still prevalent in Indian society. But, there is a separate legal structure to deal with that issue. It is the Pre-Conception and Pre-Natal Diagnostic Techniques Act of 1994. This law basically prevents the use of pre-natal diagnostic techniques for the purpose of sex detection. It prohibits the communication of the identity of the sex of the fetus by any means; signs, words, or any other means.

The eons-old ‘Son only syndrome’ of a society inherently biased against the women and girls have made the developments of the pre-natal diagnostic techniques ethically pliable, subject to manipulation, and utilitarian in a wrong way.  

Treating the discussion as a story, the woman is born and has obtained a job through her academic and professional rigor in the modern ultra-competitive world with its inherent misogynistic bias almost everywhere (face it, that’s the sad truth of today’s India). Now, after she gets married and is planning to have baby, the big question which will stare on her face is the maternal leave. Will the employer provide it? If the employer provides it, how will the family support her? All these are still relevant to a large chunk of working Indian women. The Maternity Amendment Act of 2017 entitles every woman a maternity leave of 26 weeks (earlier it was 12 weeks) which cannot be availed before eight weeks (earlier it was six weeks) from the date of expected delivery. The act also provides for 12 weeks of maternity leave to an adoptive mother who adopts a baby less than three months of age and to a commissioning mother. A woman who uses her egg to get a baby from a surrogate mother is known as a commissioning mother. This law is silent about the adoption of older babies by working mothers, and adoption by transgenders or of other people of fluid gender identity who would like to be working mothers. It is also silent or rather not accommodative about the paternal leave needed by a father, especially if he is a single, divorced, or widowed father. The clause in this act regarding the commissioning mother has been criticized by some observers as they feel that it inadvertently sanctions surrogacy in a rather demeaning way.

India has come a long way in terms of the development of the rules, regulations, and laws in terms of women’s rights. The main hindrance is the awareness among the population for whom the laws have been legislated. In today’s world where the attention span of the people is reducing day by day, it should be the priority of the government and the relevant NGOs to run awareness campaigns on different media platforms to make the women and the public aware of the rights and specifically the punishments which are delineated in the relevant laws for the violations of such laws. Strict implementation should be made a priority by both the state and the union governments. They should set up special women’s cells at the local district level which would routinely perform round up tasks of the medical facilities which might be in violation of the acts like the PCPNDT Act 1994(amended 2003). If such steps are not taken with utmost seriousness, then, indeed women’s rights would remain an ignored issue in the Indian context.