The 2019 general election has brought to the forefront hotly contested political issues and promises. But one area of reform that has just not been an important electoral issue is the sexual and reproductive rights of women. While all major parties make some piecemeal promises to women, the recognition of sexual and reproductive rights is almost negligible. This is despite the recent progressive legal work in courts.
The fine print
It is revealing to examine the narrow ways in which political parties have addressed reproductive rights. For example, the Congress manifesto says the party will pass suitable legislation to make registration of marriages compulsory and to enforce the law prohibiting child marriages. The Bharatiya Janata Party’s manifesto interestingly focusses on women’s menstruation and says it will ensure that all reproductive and menstrual health services are easily available to all women across India. Further, with the expansion of the Suvidha scheme, sanitary pads at a cost of ₹1 will be provided to all women and girls. The CPI(M) has promised to make marital rape an offence and to ensure strict implementation of the Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (PCPNDT) Act, which prohibits sex determination tests and female foeticide.
This is the extent to which reproductive rights are understood in India — child marriage, female foeticide, sex selection and menstrual health and hygiene. These are extremely important issues but are selective.
Sexual and reproductive rights in India must include a concern with maternal deaths, access to maternal care to safe abortions, access to contraceptives, adolescent sexuality, prohibition of forced medical procedures such as forced sterilisations and removal of stigma and discrimination against women, girls and LGBTI persons on the basis of their gender, sexuality and access to treatment.
Data on India
India has among the highest number of maternal deaths worldwide (which UNICEF India and World Bank data put at an estimated 45,000 maternal deaths every year, or an average of one maternal death every 12 minutes). Unsafe abortions are the third leading cause of maternal deaths in India. Research by Susheela Singh and others ( The Lancet , January 2018) shows that half the pregnancies in India are unintended and that a third result in abortion. Only 22% of abortions are done through public or private health facilities.
Lack of access to safe abortion clinics, particularly public hospitals, and stigma and attitudes toward women, especially young, unmarried women seeking abortion, contribute to this. Doctors refuse to perform abortions on young women or demand that they get consent from their parents or spouses despite no such requirement by law. This forces many women to turn to clandestine and often unsafe abortions. The Medical Termination of Pregnancy Act, 1971 provides for termination only up to 20 weeks. If an unwanted pregnancy has proceeded beyond 20 weeks, women have to approach a medical board and courts to seek permission for termination, which is extremely difficult. The MTP Act is long overdue for a comprehensive reform.
The Supreme Court, on the other hand, has been extremely progressive on women’s reproductive rights. The court in decriminalising adultery and in the Navtej Johar judgment striking down Section 377 held clearly, that women have a right to sexual autonomy, which is an important facet of their right to personal liberty. In the landmark Puttaswamy judgment in which the right to privacy was held to be a fundamental right, the Supreme Court held: “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation... Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life.”
In the case of Independent Thought v. Union of India in the context of reproductive rights of girls, Justices M.B. Lokur and Deepak Gupta held, “The human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance.” These judgments have an important bearing on the sexual and reproductive rights of women. The right of women and girls to safe abortion is an important facet of their right to bodily integrity, right to life and equality and needs to be protected.
Political parties, which also represent India’s women, have an obligation to take forward the debates on reproductive rights, equality, and access to abortion in political debates as well as in framing laws and policies.
The responsibility also lies with civil society and development actors to bring up these issues for public debate and in demands. The silence around unsafe abortions is leading to deaths of women and hides important problems that lie at the intersection of these concerns, such as the formidable barriers for adolescent girls to access reproductive health services, including abortion services. The right to safe abortion is an important political issue that must be addressed and widely debated, particularly if parties and leaders are committed to women’s human rights.
Access to legal and safe abortion is an integral dimension of sexual and reproductive equality, a public health issue, and must be seen as a crucial element in the contemporary debates on democracy.
Jayna Kothari is a Senior Advocate in the Karnataka High Court; Maya Unnithan is Professor of Social and Medical Anthropology, University of Sussex; Siri Gloppen is Professor and Director of the Centre on Law and Social Transformation, University of Bergen