By- Ramyata Dass
INTRODUCTION
“You can tell the condition of a Nation by looking at the status of its women” was once said by Jawaharlal Nehru. Since independence there have been a lot of changes in the Rights of women in law and in society. Conventionally women were seen only fit for care giving roles without any decision making power with regards to major decisions of her own life whether it is pregnancy, children, land holding rights or politics. This has changed today.
The journey of women’s rights is revolutionary and inspiring, albeit this article specifically talks about the journey of women with respect to her sexual rights. Any discussion on sexual rights of women would be incomplete without discussing the WAS Declaration of sexual rights, the 1995 Beijing Conference on Women and the Universal Declaration of Sexual Rights.
The article will also discuss the status of these rights of women in India and the role played by the Indian judiciary in this.
WHAT IS MEANT BY SEXUAL RIGHTS OF WOMEN?
According to the International Women’s Health Coalition[1], “Sexual Rights Are Human Rights, for women and girls, the right to control their own bodies and their sexuality without any form of discrimination, coercion, or violence is what is have the sexual right. They rest on the recognition that all individuals have the right—free of coercion, violence, and discrimination of any kind—to the highest attainable standard of sexual health; to pursue a satisfying, safe, and pleasurable sexual life; to have control over and decide freely, and with due regard for the rights of others, on matters related to their sexuality, reproduction, sexual orientation, bodily integrity, choice of partner, and gender identity; and to the services, education, and information, including comprehensive sexuality education, necessary to do so.”.
The IWHC opines that without these rights it is not possible for women to realise any other right related to self-determination and autonomy which also affects their control over other aspects of lives. It is the want of control over women’s sexual rights which leads to various human right abuses taking place on a daily basis from gender-based violence to forced marriage, female genital mutilation, and limitations on their mobility, dress, education, employment, and also participation in public life.
THE WAS DECLARATION OF SEXUAL RIGHTS
The World Association of Sexology (WAS) states that the sexual rights are imbibed in universal human rights which have been duly recognized by national and international arenas and is an integral part of the personality of every human being.
Sexual rights are just like any other inherent human rights like freedom, dignity and equality in human beings. WAS opines that since health is a fundamental human right, so must sexual health be a basic human right. In order to elucidate more on this the WAS pointed out 11 rights[2] related to sexual rights at the 14th World Congress of Sexology (Hong Kong, 1999) as:
- The right to sexual freedom: sexual freedom would include the possibility for individuals to fully express their sexual potential but this would exclude any vitiating factors like sexual coercion, exploitation, and abuse at any time and situations in life.
- The right to sexual autonomy, sexual integrity, and safety of the sexual body: This right encompasses one’s right to make his own decisions regarding one’s sexual life within his/her own personal and social ethics. This also means the enjoyment of one’s own bodies which is free from any torture or mutilation or violence of any sort.
- The right to enjoy Sexual privacy: this right means the decision and behaviour of an individual about intimacy as long as it does not encroach on the sexual rights of others.
- The right to sexual equality: This right encompasses freedom from all forms of discrimination irrespective of gender, sex, sexual orientation, age, race, social class, religion or physical and emotional disability.
- The right to sexual pleasure: Right to Sexual pleasure which would include autoeroticism is said to be a source of physical, psychological, intellectual and spiritual wellbeing.
- The right to emotional sexual expression: The right to emotional sexual expression is regarded as more than just erotic pleasure or sexual acts. It has been defined as an individual’s right to express their sexuality through communication, touch, emotional expression and love.
- The right to sexually associate freely: this right is meant as the possibility to marry or not, to divorce and to establish other types of responsible sexual associations
- The right to make free and responsible reproductive choices: This is one of the most important rights with regards to women. This encompasses This encompasses the right to decide whether or not to have children, the number and spacing of children, and the right to full access to the means of fertility regulation.
- The right to sexual information based upon scientific inquiry: this implies that there should be scientifically ethical inquiry about sexual information and this should be disseminated in appropriate ways at all societal levels
- The right to comprehensive sexuality education: This is a lifelong process from birth throughout the lifecycle and should involve all social institutions.
- The right to sexual health care: Sexual health care should be available for prevention and treatment of all sexual concerns, problems, and disorders.
Human rights, according to the 1995 Beijing Conference on Women, include the right of women to have complete autonomy over and make decisions about their own sexuality and sexual and reproductive health, free of coercion, harassment, or discrimination. This has been interpreted as the applicable definition of women’s reproductive rights in many countries (Sweden’s international policy on Sexual and Reproductive Health and Rights).
It was also said that Women’s capacity to defend themselves from abuse would be improved if they had more power, according to the United Nations Commission on Human Rights.[3]
The Yogyakarta Principles (which were introduced as a collection of international principles relating to sexual orientation and gender identity on March 26, 2007) were inspired by this Declaration, especially the concept of each person’s dignity and right to sexual and reproductive health.
POSITION IN INDIA
Women’s sexual and reproductive rights, on the other hand, are still largely unrecognised in the nation. In India, reproductive rights are only addressed in the sense of particular issues such as child marriage, female foeticide, sex selection, and menstrual health and hygiene.
The position of reproductive health of women in India is not strong. According to data from UNICEF India and the World Bank, India has one of the highest rates of maternal deaths in the world. Every year, 45,000 maternal deaths occur in India, with one maternal death occurring every 12 minutes on an average.
Only up to 20 weeks of pregnancy may be terminated under the Medical Termination of Pregnancy Act of 1971. When an unwanted pregnancy has advanced past 20 weeks, women must obtain consent from a medical board and the courts to terminate the pregnancy, which is exceedingly complicated and time-consuming. Non-medical questions about the financial costs of raising a child, the impact on career decisions, or any other personal factors are not covered by the legislation.
The deaths of women is a result of silence around unsafe abortion results which conceals critical issues at the intersection of these questions, such as the daunting obstacles that teenage girls face in accessing reproductive health services, including abortion services.
CIRCUMSTANCES UNDER WHICH PREGNANCY CAN BE TERMINATED
Voluntarily ending a pregnancy is a criminal act under the Indian Penal Code, 1860. The Medical Termination of Pregnancy Act of 1971 requires medical doctors (with specific specialisation) to terminate a pregnancy on certain grounds. A pregnancy can be terminated at any time up to 12 weeks if one doctor agrees, and up to 20 weeks if two doctors agree. It is
- Only when the pregnancy’s continuation will endanger the pregnant woman’s life,
- cause grave harm to her mental or physical health (including abuse and failure to use birth control),
- Or result in foetal defects is it permissible to terminate the pregnancy.
TERMINATION DUE TO FAILURE OF CONTRACEPTIVE METHOD OR DEVICE:
Under the Act, a married woman can terminate a pregnancy up to 20 weeks if the contraceptive method or device fails. Unmarried women may also terminate a pregnancy for this purpose under the Bill.
THE BILL TO INCREASE UPPER LIMIT FOR LEGAL ABORTIONS
The Medical Termination of Pregnancy (Amendment) Bill, 2020, was passed by the Rajya Sabha , in response to the need and demand for a higher gestation limit and to ensure women’s safety and well-being. The Lok Sabha approved it on March 17, 2020.
The Bill is a legislative response to numerous petitions filed in the Supreme Court and High Courts, asking for permission to terminate pregnancies outside the current allowable limit of 20 weeks due to foetal anomalies or pregnancies caused by sexual abuse towards women.
The bill was introduced by the Union health minister Dr. Harsh Vardhan which seeks to amend Section 3 of the Medical Termination of Pregnancy Act, 1971 which intends to extend the upper limit for medical termination of pregnancy to 24 weeks from the present 20 weeks for only certain categories of women as “Vulnerable women” which will be defined in the MTP rules. This category of vulnerable women includes rape victims.
The Statement of Objects and Reasons annexed with the Bill states
“With the passage of time and advancement of medical technology for safe abortion, there is a scope for increasing upper gestational limit for terminating pregnancies especially for vulnerable women and for pregnancies with substantial foetal anomalies detected late in pregnancy. Further, there is also a need for increasing access of women to legal and safe abortion service in order to reduce maternal mortality and morbidity caused by unsafe abortion and its complications.“[4]
As provided by the bill, the opining of one doctor will be required for the termination of pregnancy up to 20 weeks and opinion of two doctors will be required for termination of pregnancy between 20 to 24 weeks. The doctors should be of the opinion that if such pregnancy would be continued it would cause risk to the life of pregnant woman or gravely injure her physically or mentally or a substantial risk that if the child were born, it would be exposed to serious physical or mental abnormality.
Notably, the Bill stipulates that the upper gestation limit will not be applicable in cases where the termination of pregnancy is necessitated by the diagnosis of any of the substantial foetal abnormalities, diagnosed by a Medical Board.[5]
The bill further provides that the medical board will be comprised of:
- A Gynaecologist
- A paediatrician
- A radiologist
- A sonologist
- Other members as maybe specified by the state government.
The details and functions will be prescribed subsequently by the MTP rules. The bill also talks about the confidentiality of the woman. It stipulates that the name and any other details of the woman whose pregnancy is terminated will not be revealed except to the person authorised in any law which is in force and any person acting in contravention of this provision is liable for imprisonment which may extend to one year or fine or both.
THE VIEW OF COURTS IN THIS MATTER
From time to time it has been seen that the courts in India have taken a progressive approach regarding women’s reproductive health. In a nutshell, below are a few cases which support this view.
- Navtej Singh Johar vs Union Of India Ministry Of Law (2018) 10 SCC 1
The apex court through this judgment decriminalised adultery and homosexuality and has clearly held that women have a right to sexual autonomy which is an important facet of their right to personal liberty.
2.K.S. Puttaswamy v. Union of India, (2018) 3 SCC 797
The apex court here has held that the Constitutional right of women to make reproductive choices, as a part of personal liberty under Article 21 of the Indian Constitution.
3.Independent Thought vs Union Of India
The apex court in a bench headed by Justice Madan B Lokur in 2017 in a case with regards to reproductive rights of girls SC 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”.
CONCLUSION
As rightly said by Swami Vivekananda “It is impossible for a bird to fly on only one wing, it is impossible to think about the welfare of the world unless the condition of women is improved”. The fights for women’s rights have come a long way but it also has a long way forward.
There are various changes to be bought about in legislations inclusive of women’s reproductive rights. Like the MTP act which needs to be reformed and made sensitive towards the plight of married women who are forced to carry a pregnancy against their will. The act does not talk about the economic burden on woman for the bearing of that child. Similarly changes should be brought about to make the legislations more sensitive towards women’s reproductive and sexual rights.