Decisional Autonomy as Central to Privacy: Reproductive Rights in India

Shubhangi Agarwalla.JPG

Shubhangi Agarwalla

National Law University, Delhi

In Puttuswamy v Union of India 2017, a nine-judge bench of the Supreme Court of India expressly affirmed the centrality of decisional autonomy in any discourse on privacy. The judgement recognised sexual and reproductive autonomy as fundamental choices protected by the right to privacy. It 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.”

This was groundbreaking since, historically, reproductive health-related laws and policies in India have failed to take a women’s-rights-based approach. Instead, they were focused on demographic targets, such as population control, while also implicitly or explicitly undermining women’s reproductive autonomy through discriminatory provisions such as spousal consent requirements for access to reproductive health services. The Puttuswamy judgement calls into question a number of laws that exist in India today.

For example, taken to its logical conclusion, the right to privacy as conceived in the judgment can completely upend the Medical Termination of Pregnancy (MTP) Act, 1971 framework, which regulates abortion. It is crucial to note that the Act allows abortion as a population control measure rather than as a right. Though case law up until the Puttaswamy judgment had recognised a fundamental right to procreate or to abstain from procreating through the use of contraceptives, neither statutory law nor court decisions have recognised the right to abort. The MTP Act prohibits abortions unless medical opinion supports the need for termination of pregnancy on certain limited grounds (section 3 and section 5 of the Act)

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 less than 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. A woman cannot independently choose to abort a child at any stage of the pregnancy. Shifting the decision to abort from the woman to her doctor is antithetical to the notion of abortion as an “intimate decision.”

If the legal system does recognise the right to abort, as Justice J Chelameswar’s opinion does in the Puttaswamy judgment (para 38), it will also have to determine the extent to which the state can intervene in the exercise of this right. When does a woman’s right to privacy and bodily integrity give way to the state’s interest in preserving the life of the foetus? Can the state dictate what valid reasons for aborting a child are? For example, if a woman does not want to carry a female foetus to term, should she have the right to abort the foetus?

Similarly, the right to privacy will structure ongoing debates on the permissibility of compensated surrogacy in India. The Surrogacy (Regulation) Bill, 2016, which was passed by the Lok Sabha in December 2018, prohibits compensated surrogacy and limits persons who are eligible to seek altruistic surrogacy services as well as those who are eligible to offer them. Permitting uncompensated surrogacy but prohibiting compensated surrogacy assumes that women’s inherent role is to birth children. Yet, it denies women the capacity to earn wages for this work. This reinforces stereotypes that a woman’s role is in the family sphere, which is based on notions of love and duty, and she should not expect to be remunerated for her work. This invisibilizes women’s labour. Moreover, proponents of a ban who come from purely moral objections to the commodification of women’s reproductive labour are seeking to enforce their own morality on women who seek to exercise their bodily and reproductive autonomy by becoming surrogates. 

The Puttuswamy judgement illustrates the significant and evolving role the judiciary can play in India to address the legal and practical barriers which operate to deny women and girls their reproductive rights. While litigation has its challenges, including long time frames and difficulty with implementation of decisions, the robust recognition of reproductive rights as fundamental rights emerging from Indian courts has the ability to create a mandate for the government to shift away from population control approaches, confront discriminatory stereotypes that limit women’s authority, and instead center women’s rights on dignity, autonomy, and bodily integrity in reproductive health related laws and policies. The legal guarantees articulated in the judgment discussed above create a strong call to action for the judiciary to continue to defend and uphold women’s reproductive rights — defined to include both reproductive health and autonomy — including for marginalized populations in upcoming litigation.

Shubhangi Agarwalla is a student at National Law University, Delhi. This post was written during a research internship at the Max Planck Institute for Comparative Public and International Law, Heidelberg

Suggested citation: Shubhangi Agarwalla, “Decisional Autonomy as Central to Privacy: Reproductive Rights in India” IACL-AIDC Blog (14 June 2019)