A Womb of One’s Own: Privacy and Reproductive Rights

In the context of the privacy judgment (Justice K S Puttaswamy v Union of India 2012a), we examine two reproductive rights issues that have featured prominently in recent public discourse: abortion and surrogacy. In this piece, we outline how the privacy judgment provides a much-needed impetus to the legislature to resolve potential constitutional challenges to laws on these two issues. 

On 24 August, 2017, a nine-judge bench of the Supreme Court of India (hereafter SC or Court) unanimously affirmed privacy as a fundamental right under the Constitution (Justice K S Puttaswamy v Union of India 2012a). The bench recognised privacy as an inalienable right, grounded in values such as dignity which underlie all our fundamental rights, and it categorically located privacy in the individual. While judges phrased their conceptions of privacy differently, the bench commonly held privacy to cover personal autonomy relating to the body, mind, and to making choices, as well as informational privacy. 

A key aspect of this personal autonomy are reproductive rights, which entail rights to make sexual and reproductive decisions, as recognised by the 1994 United Nations International Conference on Population and Development (UNPIN 1994). These rights have been elaborated to include access to contraception, the right to a legal and safe abortion, the right to make decisions concerning reproduction free of discrimination, coercion and violence, the right to not be subject to harmful practices such as the coerced bearing of children (including with their spouse); and equal entitlement of LGBTQ persons to the same sexual and reproductive health services as all other groups (UNFPA, OHCHR, and DIHR 2014). 

Abortion and Reproductive Autonomy

The Puttaswamy judgment specifically recognised the constitutional right of women to make reproductive choices, as a part of personal liberty under Article 21 of the Indian Constitution (Justice K S Puttaswamy v Union of India 2012a: para 72, 2012b: para 46, 2012c: para 38). The bench also reiterated the position adopted by a three-judge bench in Suchita Srivastava v Chandigarh Administration (2009), which held that reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth, and to subsequently raise children; and that these rights form part of a woman’s right to privacy, dignity, and bodily integrity. 

The Suchita Srivastava case arose in the context of the Medical Termination of Pregnancy Act, 1971 (MTP Act), which governs abortions in India. Enacted two years before the landmark judgment of the US Supreme Court in Roe v Wade (1973), the MTP Act allows for legal abortions only if certain conditions are met. Under Section 3 of the act, only registered medical practitioners can terminate a woman’s pregnancy if they believe in good faith that continuing the pregnancy would involve a risk to the woman’s life or gravely injure her physical or mental health; or that the child would be seriously handicapped by physical or mental abnormalities. If the woman has been pregnant for under 12 weeks, the permission of one medical practitioner is required, and if the pregnancy is between 12 and 20 weeks, the authorisation of two medical practitioners is mandatory. Beyond 20 weeks, Section 5 of the act applies, which permits abortion only in situations where the medical practitioner believes that abortion is immediately necessary to save the woman’s life. 

The act places these restrictions to balance a woman’s right to privacy against the state’s legitimate interest in protecting the woman’s health, as well as the potentiality of human life (Suchita Srivastava v Chandigarh Administration 2009: 11). Another commonly-advanced justification is that restricting abortions is necessary to prevent sex-selective abortions. But the 46-year-old act has met rising opposition over the years for its restrictive nature and failure to keep up with technological advancements in medicine.^[1] The privacy judgment significantly bolsters calls for reform, opening further avenues for Sections 3 and 5 to be challenged. 

Sections 3 and 5 evidently infringe women’s rights to make reproductive choices, which the bench affirmed as parts of the right to privacy. At no point during a pregnancy can a woman choose to get an abortion on her own, which prevents women from exercising their rights to physical integrity and making free choices relating to their bodies.^[2] Abortions are doctor-centric, with doctors having the ultimate discretion over the woman’s body and choice, at all stages of her pregnancy. Further, the law recognises only medical risks as grounds for an abortion, delegitimising all other reasons why a woman may seek to terminate her pregnancy. These medical risks are further emphasised after 20 weeks, in which case, a woman is forced to carry pregnancy to term unless it poses a grave risk to her life, even if other grounds of physical and mental abnormalities in the foetus are satisfied as per Section 3. The law does not accommodate non-medical concerns over the economic costs of raising a child, effects on career decisions, or any other personal considerations. In addition, the act makes invisible the plight of married women who are forced to conceive and carry a pregnancy to term against their will. This is because the marital rape of women older than 15 years is not legally recognised as rape.^[3] 

The state can, of course, place limitations on fundamental rights, but these limitations must pass tests outlined in constitutional jurisprudence. Since privacy claims can be grounded in any of our fundamental rights, the bench affirmed that any limitation on privacy will be tested according to the fundamental rights which it infringes and the established jurisprudence on those rights. The bench separately highlighted Article 21, which guarantees the fundamental right to life and personal liberty, and entails a “just, reasonable, and fair” test (Maneka Gandhi v Union of India 1978), that is, any law restricting Article 21 must be “just, reasonable, and fair” to remain constitutionally valid. 

It is this test that Sections 3 and 5 of the MTP Act will have to pass. Justice Chandrachud described this test as comprising of three prongs: the privacy restriction should exist as a valid law; there must be a “legitimate state interest” behind it; and the restriction should be “proportional” to its aim.  The judgment potentially leaves open two standards of scrutiny for the last “proportionality” prong of the test. Either the SC uses a lower standard of “rationality,” where the state must prove that there is a rational nexus between the object of the privacy limitation and the means adopted, or the SC uses a stricter standard, where the state must prove that there are no other less restrictive means which would achieve the same object. 

Applying either standard would raise significant challenges to Sections 3 and 5 of the MTP Act. If these provisions are challenged, the state, at the very least, would have to show that there is a rational nexus between its interests (in protecting women’s health and potential human life) and preventing women from deciding on abortions on their own. Further, since the privacy judgment has also bolstered calls to criminalise marital rape, future judgments may expand recourses available to married women under Section 3. 

Even before the privacy judgment, similar criticisms had been voiced against the MTP Act for years, and an amendment bill was thus introduced in 2014 (MoHFW 2014). The Medical Termination of Pregnancy (Amendment) Bill seeks to expand reproductive rights under the act. Most crucially for privacy concerns, the bill allows abortion on “request” of a woman up to 12 weeks of pregnancy. Through Section 2(d), the bill also seeks to improve access to abortions by allowing “registered healthcare providers,” including ayurveda and homeopathy practitioners to authorise abortions, and nurses and auxiliary midwives to perform them (though additional regulation of such providers is necessary). Protecting a key aspect of “informational privacy,” Section 5A of the bill also mandates that no registered healthcare provider shall reveal the name and other particulars of a woman whose pregnancy has been terminated as per the provisions of the act.

But even these amendments may not satisfactorily address all privacy concerns with the act’s restrictions on abortions. Although the amendment allows abortions on a woman’s request up to 12 weeks, women still have to prove that the pregnancy was unplanned or that contraceptives failed, which still considerably restricts their exercise of choice in this matter. To get an abortion, the amendment still insists on establishing that either the foetus or the mother is at risk. 

Since the amendment bill has not yet been passed, the legislature should immediately remedy the bill’s shortcomings. As Justice Chandrachud observed, the state does not merely have a negative duty (to not infringe privacy), but also has positive obligations to take all necessary measures to protect an individual’s privacy (Justice K S Puttaswamy v Union of India 2012a: para 3[I]). Apart from the privacy judgment, a 2016 Bombay High Court judgment provides useful guidance for reform (Bhatia 2016). In a suo motu PIL concerning the deplorable condition of a female prison inmate, the high court categorically stated that a “woman alone should have the right to control her body, fertility and motherhood choices.” The high court also addressed the status of the legitimate state interest in protecting “potential life.” It stated that since pregnancy takes place within a woman’s body and profoundly affects her health, mental well-being and life, an unborn foetus cannot be put on a higher pedestal than the rights of a living woman. 

Thus, the Bombay High Court and Supreme Court have both emphasised women’s autonomy to take informed decisions regarding their own bodies, fertility, and reproduction. Even when the judiciary has allowed abortions beyond 20 weeks, the fact that women have had to move the courts highlights a further restriction on their access to safe and legal abortions (Indian Express 2017). In a country where 9–20% of maternal deaths are caused by unsafe abortions (Sebastian et al 2014), there is an urgent need to align the provisions of the MTP Act with these judgments. In addition to all the changes discussed above, the MTP Amendment Bill would also benefit from a specific provision that reiterates women’s rights to self-determination around abortions. This would go a long way in addressing privacy concerns and reducing the stigma surrounding abortion.  

Questions around Surrogacy

Another reproductive rights issue that has recently occupied the limelight is that of surrogacy.  With the advent of assisted reproductive technology (ART), surrogacy has become more common, especially amongst couples who are unable to conceive. The nine-judge bench did not explicitly mention surrogacy, but it affirmed existing privacy jurisprudence, which has recognised personal decisions about birth and babies as being part of reproductive autonomy 
(B K Parthasarathi v Government of Andhra Pradesh 2000). Other SC judgments in the past have explicitly recognised surrogacy as a method of reproduction, thus clearly bringing it within the reproductive aspect of privacy rights (Baby Manji Yamada v Union of India 2008). 

Surrogacy is a complex issue which poses multiple legal and ethical questions, including definitions of parenthood and custody of children. For instance, commercial surrogacy has been criticised within a particular stream of feminist discourse for commodifying the reproductive capacities of women (Lieber 1992). Scholars have highlighted race and class considerations, since women living in abject poverty (Warner 2008) and women of colour (Smerdon 2008) are more vulnerable to exploitation through surrogacy. In India, similar concerns have been voiced since the legalisation of commercial surrogacy. The Indian surrogacy business is currently valued at more than $400 million, with more than 3,000 fertility clinics nation-wide, leading to the country even being dubbed a “baby factory”. Numerous cases of abandonment of babies, exploitation of surrogates and egg donors, and non-payment of promised monetary compensation have been reported (Sarangi 2017). In addition, the Indian judiciary has had to resolve legal issues relating to the “statelessness” of children born out of surrogacy (Baby Manji v Union of India 2008; Jan Balaz v Anand Municipality & Ors 2010). 

Given these issues, based on the recommendations of the Law Commission of India, the Union Cabinet approved the Surrogacy (Regulation) Bill in 2016 (hereafter referred to as surrogacy bill or bill) (Law Commission of India 2009). The bill attracted heavy criticism from the outset, which has renewed in the wake of the judgment. If passed as law, it is likely to face severe challenges arising out of the right to privacy. 

The bill imposes a complete ban on commercial surrogacy (Section 3), in the interest of preventing exploitation of surrogate mothers, and children born through surrogacy (Statement of Object and Reasons). It allows only altruistic surrogacy (Section 4 [ii][b]) and that too only when either or both members of the couple have proven infertility (Section 4 [ii][a]). In addition, the intending parents must be Indian, heterosexual (Section 2[g]), married for at least five years, and must not have any surviving child biologically or through adoption or surrogacy (Section 4 [iii][c]). The surrogate mother must be a close relative, and is allowed to act as a surrogate only once in her lifetime (Section 4 [iii][b]). Further, both the intending parents and surrogate mother need eligibility certificates from the appropriate authority under the act. 

By allowing surrogacy only for married couples, the bill excludes LGBTQ or live-in couples, and single, divorced, or widowed parents, criminalising their exercise of reproductive autonomy in this matter.^[4] Even if the state cites legal complications and custody issues for denying access to surrogacy outside a marriage, it may have an uphill task meeting the just, fair and reasonable standard. It may also face challenges under Article 14, which guarantees a fundamental right to equality. The surrogacy bill contradicts India’s adoption laws (Hindu Adoptions and Maintenance Act, 1956 [Sections 7 and 8] and the Juvenile Justice [Care and Protection of Children] Act, 2015 [Section 57]), which allow conditional adoption for single and divorced parents. The surrogacy bill also severely limits the autonomy of married couples and potential surrogates with the stringent conditions and requirement of eligibility certificates for both. Prerequisites such as childlessness and five years of non-conception for intending parents, and being a close relative for surrogates, are likely to receive heavy scrutiny under the same standards. Further, the Parliamentary Standing Committee on the Surrogacy Bill recognised that forcing a married couple to publicly declare their infertility raises privacy concerns, especially given the stigma often attached to infertility (Rajya Sabha 2017: para 5.81). The bill raises similar concerns for surrogates as well, since they too would have to disclose their identity. 

Besides privacy-related issues, the bill ignores ground realities and cases where women are coerced into becoming surrogates by their families (Rajya Sabha 2017: para 5.79). The ban on commercial surrogacy affects the right to livelihood of women who wish to become surrogates and instead expects surrogates to perform reproductive labour without compensation (Rajya Sabha 2017: para 5.19). 

Conclusions

The privacy judgment has rekindled the debate around abortion and surrogacy. The judgment makes it plausible to expect petitions that raise strong challenges to the constitutionality of the provisions of these bills, if they become law as is. The Parliament should utilise this opportunity to amend the pending MTP (Amendment) Bill and the Surrogacy (Regulation) Bill in accordance with the privacy judgment and fulfil its positive obligations to protect an individual’s privacy.

Cases Cited

Justice K S Puttaswamy v Union of India (2012a): Writ Petition (Civil) No 494 of 2012 (majority opinion), Supreme Court judgment dated 24 August 2017.

Justice K S Puttaswamy v Union of India (2012b): Writ Petition (Civil) No 494 of 2012 (Nariman, J, concurring), Supreme Court judgment dated 24 August 2017.

Justice K S Puttaswamy v Union of India (2012c): Writ Petition (Civil) No 494 of 2012 (Chelamaswar, J, concurring) Supreme Court judgment dated 24 August 2017.

Suchita Srivastava v Chandigarh Administration (2009): SCC, SC, 9, p 1.
Roe v Wade (1973): 410 US 113.

B K Parthasarathi v Government of Andhra Pradesh (2000): ALD, AP, 1, p 199.

Baby Manji Yamada v Union of India (2008): SCC, SC, 13, p 518.

Jan Balaz v Anand Municipality & Ors (2010): AIR, Guj, p 21.

Maneka Gandhi v Union of India (1978): SCC, SC, 1, p 248.

Notes

[1] One specific advance can be mentioned here relates to the detection of cardiac anomalies after 22 weeks of pregnancy. The National Commission for Women (NCW) recommended that the Union Health Ministry increase the time limit from 20–24 weeks, keeping in mind current developments in medical diagnostic technologies, in addition to the social scenario. The MTP Amendment Bill 2014 also increases the time limit from 20–24 weeks keeping in mind the recommendation of the NCW.

[2] Section 3 asserts that no pregnancy can be aborted without the prior approval of one doctor (from 0–12 weeks gestation period) and two doctors (from 12–20 weeks gestation period). Even beyond the 20 weeks period, the prior approval of doctors is needed and as has become evident from recent events, women have to move the courts to abort, demonstrating that judicial approval is also needed beyond 20 weeks. Hence, this assertion is applicable in all cases of abortion irrespective of term.

[3] In light of the privacy judgment, a two-judge SC bench recently read down the exception for marital rape and held that forced sex with all minor wives, and not just wives under the age of 15, would constitute rape. The larger exception for marital rape is also expected to be debated further.

[4] Section 38 of the bill outlines jail terms and fines for those who contravene any of the bill’s provisions, and for whom specific penalties have not been provided elsewhere in the bill. While non-recognition may not always equal criminalisation, this bill in particular does criminalise the act of choosing surrogacy for everyone apart from married couples.