Introduction protection of these rights as human rights is critical to enable

gender justice and the equality of women.

Over the last decade, Indian courts have issued several notable
decisions recognizing women’s reproductive rights as part of The Constitution of India recognizes many of these same rights
the “inalienable survival rights” implicitly protected under the as fundamental rights that the government has an obligation to
fundamental right to life. In certain ground-breaking judgments, uphold, including the right to equality and non-discrimination
the courts have even for the first time recognized reproductive (Articles 14 and 15) and the right to life (Article 21) which is
rights as essential for women’s equality and have called for understood through jurisprudence to include the rights to health,
respect for women’s rights to autonomy and decision-making dignity, freedom from torture and ill treatment, and privacy.2 India
concerning pregnancy. In cases spanning maternal health, is also a signatory to numerous international conventions, such as
contraception, abortion, and child marriage, Indian courts have the Convention on the Elimination of All Forms of Discrimination
adopted robust definitions of “reproductive rights” that reflect against Women (CEDAW); the International Covenant on Civil and
human rights standards.1 While court decisions are not uniform, Political Rights (ICCPR); the International Covenant on Economic,
several trailblazing rulings have boldly affirmed women’s rights to Social and Cultural Rights (ICESCR); and the Convention on the
remedies for violations of reproductive rights—including the first Rights of the Child (CRC), all of which recognize reproductive
case globally to recognize maternal health as a right—and laid the rights.3 Article 51(c) of the Indian Constitution and the judiciary
foundation for Indian courts to continue to play a strong role in have established that the government has a constitutional
preventing and addressing ongoing violations of these rights. obligation to respect international law and treaty obligations.4

Fundamental and Human Rights in India The government of India also bears a constitutional obligation to
Reproductive rights are essential to the realization of all human ensure legal remedies for violations of fundamental rights and
rights. They encompass a spectrum of civil, political, economic, human rights. Article 39(a) requires the government to promote
and social rights, from the rights to health and life, to the rights to equal access to justice and free legal aid as a means to ensure
equality and non-discrimination, privacy, information, and to be that “opportunities for justice are not denied to any citizen by
free from torture or ill-treatment. States’ obligations to guarantee reason of economic or other disabilities.”
these rights require that women and girls not only have access to
Reproductive Rights in India: The Current Situation
comprehensive reproductive health information and services but
also that they experience positive reproductive health outcomes Although India was among the first countries in the world to develop
such as lower rates of unsafe abortion and maternal mortality legal and policy frameworks guaranteeing access to abortion and
and the opportunity to make fully informed decisions—free from contraception, women and girls continue to experience significant
violence, discrimination, and coercion—about their sexuality and barriers to full enjoyment of their reproductive rights, including
reproduction. Violations of reproductive rights disproportionately poor quality of health services and denials of women’s and girls’
harm women due to their capacity to become pregnant and legal decision-making authority. Historically, reproductive health-related

[Link]
laws and policies in India have failed to take a women’s rights- of petitions in high courts throughout India seeking accountability
based approach, instead focusing on demographic targets, such for pregnancy-related deaths and injuries, resulting in ground-
as population control, while also implicitly or explicitly undermining breaking judicial recognition of women’s rights to survive
women’s reproductive autonomy through discriminatory provisions pregnancy and childbirth as a fundamental right. These cases—
such as spousal consent requirements for access to reproductive two of which are discussed below— have been cited globally,
health services. Despite a national law penalizing marriages of girls including in a recent case in Kenya, to uphold women’s rights to
below 18 years of age and policies and schemes guaranteeing maternal health care with dignity.9
women maternal healthcare, in practice India continues to account
for the highest number of child marriages and 20% of all maternal In 2011, the Delhi High Court issued a landmark joint decision
deaths globally.5 Although India’s National Population Policy in the cases of Laxmi Mandal v. Deen Dayal Harinagar Hospital
guarantees women voluntary access to the full range of contraceptive & Ors. and Jaitun v. Maternity Home, MCD, Jangpura & Ors.
methods, in practice state governments continue to introduce concerning denials of maternal health care to two women living
schemes promoting female sterilization, including through targets, below the poverty line. The Court stated that “these petitions
leading to coercion, risky substandard sterilization procedures, and focus on two inalienable survival rights that form part of the right
denial of access to non-permanent methods.6 In addition, although to life: the right to health (which would include the right to access
abortion is legal on multiple grounds until 20 weeks of gestation and receive a minimum standard of treatment and care in public
and throughout pregnancy where necessary to save the life of the health facilities) and in particular the reproductive rights of the
pregnant woman under the Medical Termination of Pregnancy Act mother.” Citing CEDAW and ICESCR, the decision held that “no
(MTP Act), 56% of the 6.4 million abortions estimated to occur in woman, more so a pregnant woman should be denied the facility
India annually are unsafe and result in 9% of all maternal deaths.7 of treatment at any stage irrespective of her social and economic
background…This is where the inalienable right to health which is
U.N. human rights experts and bodies have raised concerns to so inherent in the right to life gets enforced.”10
the Indian government about human rights violations arising from
a range of reproductive rights issues, including maternal mortality In 2012, the High Court of Madhya Pradesh echoed the Delhi
and morbidity, unsafe abortion and poor quality of post-abortion High Court’s judgment in Sandesh Bansal v. Union of India, a
care, lack of access to the full range of contraceptive methods and public interest litigation seeking accountability for maternal deaths,
reliance on coercive and substandard female sterilization, child recognizing that “the inability of women to survive pregnancy and
marriage, and lack of information and education on reproductive child birth violates her fundamental right to live as guaranteed
and sexual health. These experts and bodies have called for India under Article 21 of the Constitution of India” and “it is the primary
to address these violations, as well as disparities in access to duty of the government to ensure that every woman survives
reproductive health care.8 Courts in India have an important role pregnancy and child birth.”11 Importantly, the Bansal decision
to play in ensuring women’s reproductive rights as guaranteed by specifically rejected financial constraints as a justification for
their constitutional and human rights. reproductive rights violations, and established that government
obligations under Article 21 require immediate implementation of
Judicial Recognition of Reproductive Rights as Fundamental maternal health guarantees in the National Rural Health Mission,
and Human Rights including basic infrastructure, such as access to blood, water, and
electricity, in health facilities; timely maternal health services and
The Supreme Court of India and several state high courts have
skilled personnel; and effective referral and grievance redressal
made important strides in recognizing the denial of reproductive
mechanisms where maternal health care is denied.
rights as violations of women’s and girls’ fundamental and human
rights. This section highlights key decisions that have broken Contraceptive Access
ground in clearly establishing that women’s and girls’ legal rights
to reproductive healthcare and autonomy give rise to a range of In 2016, the Supreme Court issued a judgment in the case
government obligations, including providing affordable, timely, and of Devika Biswas v. Union of India & Ors. that moved beyond
quality maternal health care; guaranteeing access to the full range the reproductive health framework to also recognize women’s
of contraceptive methods in a non-coercive, quality, and target- autonomy and gender equality as core elements of women’s
free manner; preventing child marriage; and ensuring freedom constitutionally-protected reproductive rights.12 Claims of
from forced pregnancy through access to safe, legal abortion. violations of reproductive rights arising from coercive and
substandard sterilization and the lack of access to the full
Maternal Health range of contraceptive methods have been brought before the
Supreme Court of India and high courts for over a decade.13 In
In 2008, Human Rights Law Network in India began filing a series
Devika Biswas, the Supreme Court established that state policies

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and programs leading to sterilization abuse violate women’s Since 2008, cases have been filed nationwide seeking interpretation
fundamental and human rights.14 This decision marks a significant of Section 5 of the MTP Act, which explicitly allows abortion to save
step forward from past Supreme Court cases which have justified the life of a pregnant woman, to also permit abortion past 20 weeks
violations of reproductive autonomy due to concerns about on health grounds in cases of rape or fetal impairment. While the
population growth.15 Supreme Court still has two cases pending seeking recognition that
the Constitution requires access to abortion past 20 weeks on broader
In its decision, the Supreme Court unequivocally held that Article 21 grounds, since 2015 the Supreme Court has ruled three times to
includes the “reproductive rights of a person.” The Supreme Court permit abortion in individual cases past 20 weeks where medical
recognized reproductive rights as both part of the right to health as panels found that forcing the women to continue the pregnancy
well as an aspect of personal liberty under Article 21, and defined would pose risks to their mental and physical health.22 In 2017, the
such rights to include the right to “access a range of reproductive Supreme Court clarified that abortion at 24 weeks is legal in the case
health information, goods, facilities and services to enable of anencephaly, which is a fatal fetal impairment that also endangers
individuals to make informed, free, and responsible decisions about the pregnant woman’s life, stating that her rights to bodily integrity
their reproductive behaviour.” The Supreme Court found that “the and reproductive autonomy permit her to “preserve her own life
freedom to exercise these reproductive rights would include the right against the avoidable danger to it.”23 Although state high courts have
to make a choice regarding sterilization on the basis of informed had mixed rulings, two recent cases in Gujarat and Chhattisgarh have
consent and free from any form of coercion.”16 also progressively interpreted the MTP Act to allow abortions past
Significantly, the Supreme Court also linked government policies 20 weeks in cases of sexual violence.24 Importantly, these decisions
focusing on female sterilization to violations of women’s substantive recognize the significance of access to second trimester abortions for
equality. The Supreme Court emphasized the obligation to ensure women’s mental and physical well-being.
the “reproductive freedoms” of economically- and socially- In the 2016 case of High Court on its Own Motion v. State of
marginalized groups, expressing concern that informal targets and Maharashtra, the Bombay High Court ruled to improve women
incentives have deprived them of any “meaningful choice.”17 prisoners’ access to abortion and strongly affirmed women’s rights
Abortion and Forced Pregnancy to abortion as an aspect of the fundamental right to live with
dignity under Article 21. The judgment recognizes that unwanted
Recent jurisprudence concerning abortion in India also reflects pregnancies disproportionately burden women and states that
progressive evolution in the judiciary’s articulation of reproductive forcing a woman to continue a pregnancy “represents a violation
rights. Although a 2004 Supreme Court ruling undermined women’s of the woman’s bodily integrity and aggravates her mental trauma
reproductive autonomy by holding that a woman’s decision to which would be deleterious to her mental health.” The decision
undergo abortion or sterilization without her husband’s consent boldly recognizes that
could constitute mental cruelty,18 subsequent judicial decisions have
an unborn foetus is not an entity with human rights. The pregnancy
moved toward greater constitutional protection of this right. In 2009, takes place within the body of a woman and has profound effects on her
the Supreme Court recognized women’s reproductive autonomy as health, mental well-being and life. Thus, how she wants to deal with this
a fundamental right, stating that “There is no doubt that a woman’s pregnancy must be a decision she and she alone can make. The right
right to make reproductive choices is also a dimension of ‘personal to control their own body and fertility and motherhood choices should
be left to the women alone. Let us not lose sight of the basic right of
liberty’ as understood under Article 21.”19 In 2011, the High Court
women: the right to autonomy and to decide what to do with their own
of Punjab and Haryana reiterated women’s rights to reproductive bodies, including whether or not to get pregnant and stay pregnant.25
autonomy by dismissing a suit filed by a husband against a doctor
who had performed an abortion without the husband’s consent Child Marriage
saying that “[i]t is a personal right of a woman to give birth to a
There has similarly been growing recognition by Indian courts of
child…No body [sic] can interfere in the personal decision of the
child marriage as a human and fundamental rights violation. The
wife to carry on or abort her pregnancy…unwanted pregnancy would
Delhi High Court issued two decisions in 2010 and 2012 framing
naturally affect the mental health of the pregnant women [sic].”20
child marriage as a violation of human rights. These decisions
Further, in the 2013 case of Hallo Bi v. State of Madhya Pradesh
further found that child marriage implicates girls’ fundamental
and Others, the High Court of Madhya Pradesh affirmed the
rights, although they did not explicitly recognize child marriage as
importance of providing victims of rape access to abortion without
a violation of fundamental rights. The Delhi High Court expressed
requiring judicial authorization, stating “we cannot force a victim of
concern that child marriage typically involves young, vulnerable
violent rape/forced sex to give birth to a child of a rapist. The anguish
girls and exposes them to domestic violence, sexual abuse, and
and the humiliation which the petitioner is suffering daily, will
social isolation underscoring that child marriage is a violation of
certainly cause a grave injury to her mental health.”21

CENTER FOR REPRODUCTIVE RIGHTS [Link]

the “right to lead a life of freedom and dignity.”26 The Delhi High Endnotes
Court has also noted the impact of lack of education on married 1
See, e.g., Devika Biswas v. Union of India, W.P. (C) 81/2012.
girls, stating that it limits girls’ knowledge about sexual relations 2
Parmanand Katara v. Union of India, (1989) 3 S.C.R.997; Paschim Banga Khet Mazdoor
Samity v. State of West Bengal, A.I.R 1996 S.C.C. 2426; Chameli Singh v. State of U.P.,
and reproduction, which is compounded by cultural silence (1996) 2 S.C.C. 549; Consumer Education and Research Centre v. Union of India (1995) 3
S.C.C. 42; Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, A.I.R. 1981
concerning reproductive and sexual health, and denies them the S.C. 746; Kharak Singh v. The State of U.P. & Others, A.I.R. (1963) 1 S.C.C. 332.
ability to make informed decisions about health, sexual relations, 3
Convention on the Elimination of All Forms of Discrimination against Women, adopted Dec.
18, 1979, art. 4(2), 5(b), 10(h), 11(1)(f), 12, 14(2)(b), 16, G.A. Res. 34/180, U.N. GAOR,
and family planning. Finally, the court has recognized that child 34th Sess., Supp. No. 46, at 193, U.N. Doc. A/34/46, U.N.T.S. 13 (entered into force
Sept. 3, 1981) ; Committee on the Elimination of Discrimination against Women, General
marriage results in an “unrelenting cycle of gender inequality, Recommendation No. 24: Article 12 of the Convention (women and health), (20th Sess.,
sickness and poverty.”27 1999), paras. 11-12, U.N. Doc. HRI/GEN/1/Rev.9 (Vol. II) (2008); International Covenant on
Economic, Social and Cultural Rights, adopted Dec. 16, 1966, art. 12, para. 1, G.A. Res.
2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966) (entered into
The Madras High Court similarly recognized child marriage as a force Jan. 3, 1976); Convention on the Rights of the Child, adopted Nov. 20, 1989, art.
24(2)(d), G.A. Res. 44/25, annex, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49
human rights violation in 2011,28 and in 2015 issued an important (1989) (entered into force Sept. 2, 1990); see also Committee on Economic, Social, and
Cultural Rights, General Comment No. 14: The right to the highest attainable standard of
decision establishing child marriage as a violation of girls’ health (Art. 12), (22nd Sess., 2000), in paras. 8, 11, 14, U.N. Doc. HRI/GEN/1/Rev.9 (Vol. I)
fundamental rights under Articles 14 and 15 of the Constitution. (2008).
4
See, e.g., Apparel Export Promotion Council v. Chopra (1999) 1 SCR 117, para. 27.
This decision, M. Mohamed Abbas v. The Chief Secretary, 5
World Health Organization (WHO), Child Marriages: 39,000 every day, U.N. Press Release
(2013); see also Special Rapporteur on the right of everyone to the enjoyment of the highest
confirmed that the Prohibition of Child Marriage Act (PMCA), attainable standard of health, Rep. of the Special Rapporteur on the right of everyone to the
establishing 18 as the minimum legal age of marriage for girls, enjoyment of the highest attainable standard of physical and mental health, Paul Hunt—
Addendum—Mission to India, para. 94, U.N. Doc. A/HRC/14/20/Add.2 (April 15, 2010).
supersedes personal laws without violating Article 25 (freedom 6
Devika Biswas v. Union of India & Others, W.P. (C) 81/2012.
of religion) of the Constitution; rather, the ruling emphasizes that 7
Frost, Jennifer, Kalyanwala, Shveta, Moore, Ann, Singh, Susheela, Stillman, Melissa, Abortion
in India: A Literature Review, Guttmacher Institute (2014) referencing the Report on Medical
under CEDAW, fundamental rights, and directive principles of state Certification of Cause of Death, 2010, New Delhi: Registrar General of India, 2014; see also
Duggal, R., Ramachandran, V., The abortion assessment project - India: key findings and
policy, girls should be empowered and that child marriage is not recommendations, Reproductive. Health Matters 12, 122-129 (2004).
in girls’ interest. The Court further stated that PCMA “is in favour 8
Committee on the Rights of the Child, Concluding Observations: India, U.N. Doc. CRC/C/
IND/CO/3-4 (2014); CEDAW Committee, Concluding Observations: India, U.N. Doc.
of all the girl children getting proper education and empowerment CEDAW/C/IND/CO/4-5 (2014); Joint Communication Letter to India, Mandates of the
Working Group on the issue of discrimination against women in law and in practice; the
and equal status as that of men in the Society, as guaranteed under Special Rapporteur on the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health; the Special Rapporteur on torture and other cruel,
Articles 14, 15, 16 and 21 of the Constitution.”29 inhuman or degrading treatment or punishment; and the Special Rapporteur on violence
against women, its causes and consequences (2015).
9
Millicent Awuor Maimuna & Margaret Anyoso Oliele v. Attorney General and others, H.C.K.
The Road Ahead 562/2012.
10
Consolidated Decision, Laxmi Mandal v. Deen Dayal Harinagar Hospital & Others, W.P. (C)
The cases above illustrate the significant and evolving role the No. 8853/2008; Jaitun v. Maternal Home MCD, Jangpura & Others, W.P. (C) 8853/2008 &
10700/2009, Delhi High Court (2010).
judiciary can play in India to address the legal and practical barriers 11
Sandesh Bansal v. Union of India W.P. (C) 9061/2008.
which operate to deny women and girls their reproductive rights. 12
Devika Biswas v. Union of India & Others, W.P. (C) 81/2012.
13
Ramakant Rai v. Union of India, W.P (C) 209/2003; Himmat Mahila Samooh v. Haryana,
While litigation has its challenges, including long time frames and W.P. (C) 12623/2014.
difficulty in implementation of decisions, the robust recognition of 14
Devika Biswas v. Union of India & Others, W.P. (C) 81/2012.
15
Javed and Others v. State of Haryana, A.I.R. 2003 S.C. 3057; State of Haryana and Others v.
reproductive rights as fundamental rights emerging from Indian Smt. Santra, (2000) 5 S.C.C. 186.
courts has created a mandate for the government to shift away from 16
Devika Biswas v. Union of India & Others, W.P. (C) 81/2012.
17
Id.
population control approaches, confront discriminatory stereotypes 18
Ghosh v. Ghosh (2007) 2004 S.C. 151.
that limit women’s authority, and instead center women’s rights 19
Suchita Srivastava & Anr v. Chandigarh Administration, (2009) 11 S.C.C. 409.
20
Dr. Mangla Dogra & Others v. Anil Kumar Malhotra & Others, C.R. 6337/2011; Ajay Kumar
to dignity, autonomy, and bodily integrity in reproductive health- Pasricha & Others. v. Anil Kumar Mahotra & Others, C.R. 6017/2011; H.C. Punjab and
related laws and policies. The judiciary also has a key role to play in Haryana at Chandigarh (2011).
21
Human Rights Law Network (HRLN), The High Court of Madhya Pradesh allowed a
monitoring implementation of existing decisions. pregnant female prisoner to exercise her reproductive rights under the Medical Termination
of Pregnancy Act (2013).
22
Ms. X v. Union of India and Others (2016) C.W.P. 593 (IND); Chandrakant Jayantilal Suthar
Further, in the coming years, Indian courts will rule in long- v. State of Gujarat, (2015) 8 SCC 721; Mrs. X and Mrs.Y v. Union of India & Others (2016)
pending cases, such as those seeking progressive interpretations C.W.P. 308; Nikhil D. Datar v. Union of India (2014) C.A. No. 7702.
23
Meera Santosh Pal & Others V. Union of India & Others., (2017) W.P. (C) No. 17.
or reform of the MTP Act or strengthening of the legal framework 24
HRLN, High Court of Chhattisgarh will frame MLC guidelines; Court decision dated Aug.
4, 2008, Dr. Nikhil D. Datar, Gynaecologist, Mr. X and Mrs. X being wife of Mr. X v. Union
prohibiting child marriage, as well as on emerging issues such of India (UOI) through its Govt. Pleader and Advocate General, W.P. (L) No. 1816 of 2008
as surrogacy. The legal guarantees articulated in the judgments (Bombay High Court)); Madhuben Arvindbhai Nimavat v. State of Gujarat High Court, (2016)
1 S.C.R. 662; Ms. X v. State of Kerala, W.P. (C). No. 35034 (2016) (High Court of Kerala).
discussed above create a strong call to action for the judiciary to 25
High Court on its own Motion v. The State of Maharashtra, W.P. (CRL) No. 1/2016,
Maharashtra H.C.; Court on Its Own Motion Lajja Devi v. State, W.P. (CRL) No. 338 (2008)
continue to defend and uphold women’s reproductive rights— (High Court of Delhi).
defined to include both reproductive health and autonomy— 26
Association for Social Justice & Research v. Union of India & Others, W.P. (CRL) No.
535/2010, Delhi H.C. (2010); Court on Its Own Motion Lajja Devi v. State, W.P. (CRL) No.
including for marginalized populations in upcoming litigation. 338 (2008) (High Court of Delhi).
27
Id.
28
T. Sivakumar v. The Inspector of Police, H.C.P. 907/2011, para. 1, Madras H.C.
29
Mohammed Abbas v. Chief Secretary, W.P. (MD) No.3133 of 2015, Madras H.C.

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