According to UNOHCHR, “the right of a woman or girl to make autonomous decisions about her own body and reproductive functions is at the core of her basic rights to equality, privacy, and bodily integrity.” However, there is much to be spoken about following this when it comes to a woman’s decision to surrogacy or abortion. While on the surface, India has made one of the world’s most progressive surrogacy and abortion laws, the truth of the matter is that women still face disastrous consequences due to lack of legal precedence or a safe environment. This paper will aim to analyse the loopholes in surrogacy and abortion laws in India.
Historically, women have been denied the right to control their own bodies. This can be seen in laws and customs that have restricted women’s access to information, healthcare, and contraception. Additionally, women have been denied the right to make decisions about their own healthcare and have been forced to undergo medical procedures against their will. This has been particularly true for women of colour and low-income women, who have been disproportionately affected by these restrictions.
One of the prime examples of this are the surrogacy and abortion rights of women.
SURROGACY AND ITS IMPLICATION ON WOMEN IN INDIA
The continuously evolving notion of motherhood and the advancements in the field of technology has now led us to appoint a substitute for the birth of a child, whose womb acts merely as a nursery to carry the child which is then handed over to the parents. This practice is commonly known as Surrogacy. However, Surrogacy as a practice involves a lot of parties and their human rights are at stake which gradually generated an imperative need to formulate the Surrogacy Regulation Act, 2021, so that there is no miscarriage of justice in any foreseeable situation. The act is a unique synthesis of moral, ethical, medical and legal notions, which aims to stop the exploitation of the vulnerable surrogates and provides for surrogacy for needy infertile couples, widow or a divorced woman to complete their family.
Commercial surrogacy became popular in India as early as the 2000’s with the birth of world’s second and India’s first IVF (In Vitro Fertilisation) baby, Kanupriya alias Durga on October 3, 1978. In Spite of being perceived as a socially conservative society, the medical facilities for surrogacy in India flourished in the 2000s, converting it into a baby making industry, attracting foreign tourists. The low medical costs, large workforce, lax laws, poverty and an advanced medical infrastructure enabled people to ‘rent’ wombs at a low compensation amount. Such an arrangement enabled the couple to have a child of their own and the surrogate who usually is someone in need of money received remuneration for her services.
In the case of Baby Manji v. Union of India[1], the hon’ble Supreme Court of India legalized commercial surrogacy. Shortly, thereafter, the Gujarat High Court in the case of Jan Balaz v. Anand Municipality (2010)[2] highlighted the need for a law in India that regulated artificial insemination, egg donation and surrogacy agreements. Soon, shortcomings of commercial surrogacy were prevalent, considering most of the population in our country belongs to poor society, rights of women from that society thus can be easily infringed and violated by the intermediary and the clinics for the money which was agreed to be paid to the Surrogate mother for the purpose of commercial surrogacy. “Many surrogate mothers used to sign contracts agreeing that even if they were to be seriously injured during the later stages of pregnancy, or suffer any life-threatening illness, they would be “sustained with life-support equipment” to protect the foetus. Further, they usually agreed to assume all medical, financial, and psychological risks–releasing the genetic parents, their lawyers, the doctors and all other professionals from all liabilities”. [3]
The implications of surrogacy worldwide are under immense scrutiny owing to the commercial nature of the act. Though the prevalence of surrogacy acts as a boon to the large number of infertile couples, many have also questioned its ethical implications when high society clientele put a price on the very act of child bearing and the sacred concept of motherhood. This further raises issues of human rights, commoditization of children and makes women the mere objects of reproductive exchange.
Most surveys indicate that women whose families are knee deep in poverty opt for such measures in order to earn enough so as to provide themselves and their loved ones with the basic human amenities such as education for their children, medication, adequate food and water etc. According to the India Foundation, the practice of commercial surrogacy has led to the creation of ‘bio markets’ wherein certain bodies become more bioavailable than the others leading to inequalities within the global or national structure. This practice is meant for exploitative capitalisation of human bodies by making use of their vulnerabilities and social conditions in order to gain control of women’s bodies and labour. Not only this, it also points out our lack of attention towards its possible impetus to a pre-existing – market that leads to child rights violation and human trafficking.
Despite progress in recent years, women continue to face barriers to bodily autonomy. Laws and policies that restrict access to abortion and contraception continue to disproportionately affect low-income women and women of colour. Additionally, the global COVID-19 pandemic has highlighted the ways in which women’s healthcare is often marginalized, with women’s health concerns being overlooked in the development of vaccines and treatment protocols.
ABORTION AND ITS IMPLICATIONS ON WOMEN
One solution to these challenges is the passage of laws that protect and expand women’s reproductive rights. This includes the right to access safe and legal abortion, as well as the right to access contraception and comprehensive sex education.
Abortion in India is legal for a woman seeking to terminate her pregnancy until 24 weeks as per the Medical Termination of Pregnancy Amendment Act, 2021[4]. However, this plays out quite differently for minors seeking abortion , in which this might also trigger a police enquiry due to an overlap with the POCSO Act, 2012. Due to this, the regulation of the MTP Act[5] was extended to all women and minors. But this is a critical judicial labyrinth that involves judicial permissions and police enquiries which leads to exploitation of women and thus, most families end up paying a heavy cost to ensure confidentiality. Such a financially draining service cannot be received by a minor who intends to maintain their privacy and thus they have to rely upon unsafe and botched abortion services.
THE WAY FORWARD
- Implementation of laws that prohibit discrimination based on gender and reproductive health status can help to ensure that all women have the right to control their own bodies.
- Another solution is the implementation of policies that support and empower women to make their own healthcare decisions. This includes providing women with accurate and comprehensive information about their health options and ensuring that they have access to healthcare providers who respect their autonomy. Additionally, involving women in the development and implementation of healthcare policies can help to ensure that their needs and perspectives are taken into account.
- Another important aspect of bodily autonomy for women is the protection of bodily integrity[6]. This includes the prohibition of non-consensual medical procedures, such as female genital mutilation (FGM) and forced sterilization, as well as the prohibition of sexual violence and harassment. These practices not only violate a woman’s right to control her own body, but also have severe physical and psychological consequences[7].
- FGM, also known as female circumcision, is a traditional practice that involves the partial or total removal of the external female genitalia. It is a harmful and violent practice that is often performed on girls before they reach puberty. The practice is a violation of the human rights of girls and women and has no health benefits. It can cause severe bleeding, infections, and even death. It also has long-term consequences such as chronic pain, difficulty urinating and having intercourse, and problems with childbirth.
- Forced sterilization is another violation of bodily autonomy and integrity that has been used to control the reproduction of marginalized groups, including women of colour, low-income women, and women with disabilities. The practice of forced sterilization has been used to limit the reproductive capacity of these groups without their informed consent. It is a gross violation of human rights and has been condemned by the international community.
- Sexual violence and harassment are also forms of violence against women that violate their bodily autonomy and integrity. These practices can have severe physical and psychological consequences, and can limit a woman’s ability to fully participate in society. Laws and policies that criminalize sexual violence and provide support for survivors are essential to protecting the bodily autonomy of women.
- In order to fully protect women’s bodily autonomy, it is important to address these issues alongside the broader fight for reproductive rights. This requires a multifaceted approach that includes the passage of laws that protect and expand reproductive rights, the implementation of policies that support and empower women to make their own healthcare decisions, and the criminalization of practices that violate women’s bodily autonomy and integrity.
CONCLUSION
In conclusion, the right to bodily autonomy is essential for women’s health, autonomy, and equality. Despite progress in recent years, women continue to face barriers to bodily autonomy in the form of restrictive laws and policies. To ensure that all women have the right to control their own bodies, it is essential that laws and policies are put in place that protect and expand women’s reproductive rights, and that women are empowered to make their own healthcare decisions.
[1] Baby Manji v Union of India (2008) 13 SCC 518
[2] Jan Balaz v. Anand Municipality , AIR 2010 Gul 21
[3] Journal of International Women’s Studies (Vol. 22, Issue 1), Bridgewater State College
[4] Khullar Akanksha, “Amended Abortion Rights in India”, Observer Research Foundation, Oct 2022.
[5] Kaveri Megha, “Despite India’s Recent Expansion of Abortion Rights There Are Many Obstacles – Especially for Young Unmarried Women”, Health Policy Watch, November 2022.
[6] “What is Women’s bodily autonomy and why does it matter for everyone?”, World Economic Forum, March 2022.
[7] Nearly half of all women are denied their bodily autonomy, says new UNFPA report, My Body is My Own, United Nations Population Forum, April 2021.
Author: Saumya
Juris Centre 