In the State of Aurelia, doctors at public hospitals refuse to provide contraceptives to women

without their husbands’ written consent, citing ‘family values’. Leena, a 28-year-old woman, is
denied access despite explaining that using contraception is essential for her health and personal
autonomy. The State defends the policy as respecting cultural traditions.

Assess Aurelia’s obligations under CEDAW and the ICCPR regarding women’s reproductive
autonomy and non-discrimination. How would international human rights law view such
restrictions, and how might Indian constitutional law address the issue?

• Identify the key legal issues raised in the scenario.

• Apply relevant provisions from international treaties and covenants (ICCPR, CEDAW,
UNCLOS, environmental and human rights instruments).
• Refer to decisions of international bodies, and comparative jurisprudence where
appropriate.
• Critically consider both sides of the argument and demonstrate a balanced analysis.
• Relate international standards to the Indian constitutional and judicial framework where
relevant.

1. Introduction
2. Key legal issues
3. Cite the treaties and covenants – how it is applied
4. International decisions
5. Indian constitution and framework

However, this progress has a fine print too. Many women continue to
lack physical autonomy. According to the most recent National Family
Health Survey (NFHS-5), just 10% of women in India are independently
able to take decisions about their own health, and 11% of women
believe that marital violence is acceptable if a woman refuses to have
sex with her husband. Nearly half of all pregnancies in India are
unplanned, as they are globally.
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The Working Group reminds readers of women’s human rights, which

include the rights without discrimination to: equality, dignity,
autonomy, information, bodily integrity, respect for private life, the
highest attainable standard of health, including sexual and
reproductive health, and freedom from torture and cruel, inhuman
and degrading treatment. 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.
Equality in reproductive health includes access, without
discrimination, to affordable, quality contraception, including
emergency contraception. The decision as to whether to continue a
pregnancy or terminate it may shape a woman’s entire future
personal life as well as family life. The decision has a crucial impact
on women’s enjoyment of other human rights. The decision is
therefore fundamentally and primarily the woman’s decision.

 an end to prosecutions and punishment of women or medical service

providers for murder or manslaughter for termination of pregnancy (As
established in 1948 by UDHR, and upheld in the ICCPR, the human rights
accorded under IHRL are accorded to those who have been born);
 protection of the right to safe termination of pregnancy in the context of
the right to life enshrined in article 6 of the ICCPR;

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autonomy-equality-and-reproductive-health

the right to reproductive autonomy is deeply grounded in the U.S. Constitution

and is about much more than Roe and the right to abortion. To be clear, Roe’s
holding that this right is part of the liberty guaranteed by the Fourteenth
Amendment of the Constitution was correct in its recognition that decisions
about childbearing rise to the level of constitutional importance. The Supreme
Court’s watershed reproductive rights cases – from Griswold v. Connecticut to
Roe v. Wade – grounded reproductive rights in federal constitutional rights of
privacy and liberty. But in the more than fifty years since those initial decisions,
even before Dobbs ended Roe, courts failed to enforce a robust constitutional
doctrine that guarantees reproductive autonomy for all people.

The power to make and act on decisions about reproduction is central to how
people shape their lives. Everybody needs and deserves affordable and
accessible comprehensive reproductive health care regardless of where they
live, their economic status, their race, or their identity and background.

This requires that the government respect, protect, and fulfill reproductive
autonomy rights. Indeed, the history of reproductive oppression in the United
States and modern-day realities for people with the capacity to become
pregnant confirm the devastating and lasting harms that come when the
government does not.

People of all gender identities can become pregnant and are harmed by
restrictions of reproductive autonomy. Yet many restrictions have explicitly
targeted women.

The physician who led this campaign claimed that “childbearing was ‘the end
for which [married women] are physiologically constituted and for which they
are destined,’” and that avoiding this pre-ordained role “must necessarily cause
[a woman’s] derangement, disaster, or ruin.”13 The notion that women could
not be trusted with a decision to end a pregnancy, given the harm that it would
supposedly cause to their “mental, moral, and physical well-being,” was part
and parcel of this campaign.14 Similar arguments were made in support of the
related anti-contraception and purity campaigns of the time that sought to
stigmatize nonmarital and non-procreative sex as immoral, unhealthy,
physically dangerous, and contrary to women’s primary and natural
childbearing role.

The right to reproductive autonomy is grounded in international human rights,

which are recognized and accepted norms and standards setting forth basic
rights, freedoms, and state obligations. International human rights promote and
protect the dignity and equality of all people and are inherent to every person.
They provide for the freedom to choose how to live and express oneself, as well
as the right to the means necessary to meet basic needs. Human rights are
enshrined in international and regional declarations and treaties, including
several human rights treaties that the United States has ratified. Thus, human
rights are recognized in law and create binding obligations on governments.

The United States has ratified three core human rights treaties with important
protections for reproductive autonomy: the International Covenant on Civil and
Political Rights (ICCPR),71 the Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (CAT),72 and the Convention
on the Elimination of All Forms of Racial Discrimination (CERD). It has signed but
not yet ratified a number of other human rights treaties that likewise contain
critical protections for reproductive autonomy, including the International
Covenant on Economic, Social and Cultural Rights (ICESCR),74 the Convention
on the Elimination of All Forms of Discrimination Against Women(CEDAW),75
and the Convention on the Rights of Persons with Disabilities (CRPD).76

Human rights law places a specific set of obligations on governments, namely

the obligation to respect, protect, and fulfill rights. States’ obligation to respect
human rights means that states must refrain from directly or indirectly
interfering with individuals’ exercise of rights. States’ obligation to protect
human rights means that they must take measures to prevent third parties from
directly or indirectly interfering with the enjoyment of rights. The obligation to
fulfil human rights requires governments to adopt appropriate legislative,
administrative, budgetary, judicial, and other measures to ensure the full
realization of rights.

The obligation to fulfill also requires states to take measures to eliminate

practical barriers to the full realization of rights.

Just like other decisions related to one’s body and family that are protected by
rights to liberty and privacy, individuals must be able to make decisions related
to pregnancy and childbearing without government coercion. Although the
government should provide people with accurate, evidence- based information,
it must not pressure individuals’ decisions related to pregnancy or penalize or
control their conduct based solely on an asserted interest in protecting potential
life.

Further, given that decisions about pregnancy, childbirth, and parenting are
critical to living a life with dignity; and given that every pregnancy bring risks of
death and serious harm, the right to life must also protect reproductive
autonomy.

As the Court held in Union Pacific v. Botsford, “[n]o right is held more sacred, or
is more carefully guarded by the common law, than the right of every individual
to the possession and control of his own person.”

Under international human rights law, right to life protections are rooted in
Article 6 of the International Covenant on Civil and Political Rights (ICCPR), a
treaty ratified by the United States in 1994. Article 6 provides that “[e]very
human being has the inherent right to life. This right shall be protected by law.
No one shall be arbitrarily deprived of his life.”283 The right should not be
interpreted narrowly.284 And it is not subject to derogation,285 which means
that the right is absolute and cannot be suspended or restricted. Critically,
human rights experts confirm that right to life protections grounded in the
human rights treaties do not apply prenatally.

National courts have similarly interpreted right to life protections under national
constitutions. For example, the Supreme Court of India has recognized the right
to health as an aspect of the right to life with dignity, and specifically
recognized women’s right to reproductive health as being a facet of the right to
life protected under Article 21 of India’s constitution.306 Courts in India have
found that the denial of access to reproductive health care, including maternal
health care and abortion care, violates the right to life under Article 21.307

Finally, the Committee noted that, in order to fulfill the right to life and protect
against unsafe abortion, governments should ensure the availability of, and
effective access to information and education on sexual and reproductive
health, a wide range of contraceptive methods, and quality prenatal and post-
abortion health care.

Likewise, human rights law protects the right to contraception and to safe and
respectful maternal health care, free from discrimination, coercion, and
violence. UN human rights treaty bodies have recognised the prevention of
maternal mortality and morbidity and the right to safe pregnancy and childbirth
as part of a pregnant person’s rights to life, health, equality and non-
discrimination, and freedom from cruel, inhumane, and degrading treatment.
X v. Principal Secretary, Health and Family Welfare Department, Government of
NCT of Delhi and another, (2023) 9 SCC 433

At the heart of reproductive autonomy in India is Article 21 of the Constitution,

which guarantees the right to life and personal liberty. The Supreme Court has
expansively interpreted this right to include the dignity inherent in every
individual, thus embedding the right to make reproductive choices as a facet of
personal dignity.

Historically, Indian law on reproductive rights, primarily governed by the

Medical Termination of Pregnancy Act, 1971 (MTP Act), was restrictive and
catered largely to married women. The legislative intent behind this Act and its
subsequent amendments reflects a gradual shift towards recognizing the
reproductive rights of all women, irrespective of their marital status.

The MTP Act, originally oriented towards married women, has evolved to
address broader reproductive issues. The 2021 Amendment Act is particularly
significant, extending legal protections and services for medical termination of
pregnancies to unmarried women. This shift indicates a legislative recognition
of changing societal structures and the need for inclusive reproductive rights.

Extending Benefits Beyond Marital Boundaries

The 2021 Amendment notably liberalizes the conditions for permissible
termination of pregnancy and eliminates marital status as a criterion, thereby
recognizing the reproductive autonomy of all women, including those
unmarried.
India's ratification of international treaties like the International Covenant on
Civil and Political Rights necessitates harmonizing domestic laws with
international standards. The Court's interpretation of the MTP Act aligns with
these obligations, reinforcing the commitment to reproductive autonomy as a
human right.

India’s obligations under international treaties, such as the International

Covenant on Civil and Political Rights and the Convention on the Elimination of
All Forms of Discrimination against Women, necessitate harmonizing national
laws with these international standards.

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constitutional-perspective

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).

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.

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rights

The Supreme Court of India in 2016 pronounced a landmark judgement

in the case of Devika Biswas v. Union of India & Ors. which surpassed
the reproductive health framework and also realised autonomy and
gender equality as a part of women’s constitutionally protected
reproductive rights. The case arose as a result of a petition filed by a
social activist against the state’s policy of sterilization which resulted in
deaths and severe injuries. The court observed these policies to be
violative of women’s fundamental right to life under Article 21 which
includes reproductive rights of a person.
The Preamble to the Constitution of the World Health Organization (WHO)
expresses that, it is one of the key privileges of each person to enjoy the
highest attainable standard of wellbeing. The term 'wellbeing', here, envelops
inside its ambit women's reproductive rights. Further, a similar principle is
contained in Article 16(1) of the Universal Declaration of Human Rights (UDHR)
Charter which can be understood to provide reproductive rights as a basic
human right.

Further, Articles 11, 12 and 14 of the CEDAW provides that the States must take
necessary actions to eliminate all forms of discrimination in the field of health
care against women so as to ensure access to information and counselling in
relation to family planning. The CEDAW committee has been progressive and
has time and again called- out abusive state actions so as to ensure proper
implementation of the convention. For example, in the case of L.C. v. Peru the
committee found that the Peruvian government occupied with unjust gender
stereotype in infringing upon CEDAW Article 5 where the state defaulted to
prevent the refusal of fundamental health series to L.C., a thirteen-year-old girl
who became pregnant following sexual assault and who at that point attempted
to commit suicide.

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Indian reality pertaining to pregnancy and reproductive justice is different as the

traditional values, myths and patriarchal role assumed by the society paves way
for undermining the decision-making capacity of the women within a family
setup. They are considered subordinate to their male counterparts and are
having less power in relationships due to many factors like economic, political,
and socio-cultural status and at times, not in a position to protect themselves
from gender-based violence. They are considered incapable to decide on their
own even in a matter pertaining to their own reproductive choices. The concept
of autonomy in healthcare in general has a full-fledged acceptance by the
judiciary as it affects the bodily integrity of a person. Likewise, the same idea
must be reiterated in the pregnancy decision making, as women are the sole
person who undergoes the physical and mental transformation during the
process.

Women should therefore, have the right to choose when and under what
circumstances they should bear a child. So, the interest of the woman is a
determinant and she should be mentally prepared to conceive, continue the
same and give birth to a child. There are various social and ethical factors that
pose a hindrance to pregnancy decision making of women in India. Family and
social pressure forms the key factor that knocks upon the decision-making
capacity of women.

The surrogacy laws, in the bid to protect women from exploitation, take away
the choice of women to make decisions regarding their own body and monetize
them. Reproductive autonomy extends to adoption and awareness and
accessibility to safe sex practices.

Adolescent girls are assumed to not be inherently sexual creatures and have no
knowledge about safe sex practices resulting in unwanted pregnancies and
preventable sexually transmitted diseases. The right to abortion has been
granted to women, however its accessibility remains uncertain in rural areas. To
ensure reproductive autonomy for women, the laws need proper
implementation and execution. Reproductive rights like the right to abortion,
right to privacy, right to life, etc are granted to women in India. However, the
nation is still plagued by unwanted pregnancies, lack of awareness about safe
sex practices, child marriages, restrictions on surrogacy, etc.

In Suchita Srivastava v. Chandigarh Administration (2009), the appellant, an

orphaned, mentally retarded, rape victim, won the right to continue with her
pregnancy. Reproductive rights were held to 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.” Such a broad definition would also come to include health
and nutrition of both the mother and the child, public healthcare services,
access to a gynecologist, maternity, and paternity leaves, etc. According to the
United Nation as freedom of couple’s reproductive rights also includes their
right to make these decisions without
facing any discrimination, coercion or violence (Programme of Action of the
International Conference on Population and Development,1995).
From this we can infer that reproductive rights are not merely related to
reproductive health services, but also include the availability and accessibility of
sex education, information about family planning and contraceptives, safe
abortions, etc. Women, both married or unmarried, should have the choice to
conceive, free from familial pressure. Sterilizations should be affordable and
accessible to persons choosing to avail them. Only with full knowledge and
information can the people make an informed decision to exercise their
reproductive rights. Reproductive rights must also take into consideration the
right to adopt, use surrogacy as a means of reproduction and the right to not
reproduce. The essence of reproductive rights lies in the right to choose.
A significant right under the right to privacy under Article 21 is the right to
make intimate decisions without unnecessary interference from the state.

Female sexuality is seen as a taboo and any conversations around the same are
stigmatized. Women who embrace their sexuality are ostracized from society.
This makes access to contraception highly difficult for women. Information
about female contraceptives like female condoms is not readily available in the
public sphere and access to them is highly limited to upper class women.

Adolescents, experiencing new bodily changes, are also a major stakeholder as

the state of sex education in India is far from adequate. Adolescent sexuality is
stigmatized and looked down upon. Parental consent is required for reproductive
health services for minors which restricts their access to them. For a minor to
get an abortion, she requires the consent of her parent/s or guardian which
might put them in danger of facing violence at home. Honor killings, wherein a
person, who has allegedly brought shame to their community, is murdered by
their own family members, are not uncommon in India. The social evils of child
marriages and female genital mutilation, both an effort to exercise external
control over female sexuality, still exist despite laws prohibiting the same.

Unmarried girls face a lot of social barriers while accessing healthcare services
like abortions or contraceptives, because they are assumed to be sexually
inactive. They face social stigma and the danger of ostracization which prevents
them from accessing these services. Women are required to follow pre-set
ideals of purity and are held responsible for the respect of the family and any
sexual activity is condemned.
The law, however, has decriminalized all consensual sexual activity between
adults. This includes same-sex sexual acts and even extra-marital sexual
activity. Earlier, adultery used to be a punishable offence. Joseph Shine v. Union
of India (2019) struck down Section 497 of the IPC and decriminalized adultery.
This was a step in the right direction as it serves as a precedent and ensures
that sex between consenting adults remains out of unnecessary state
regulation.

The state of sex education in schools is inadequate to say the least. In 2007, 6
Indian states banned sex education in schools in a bid to preserve the culture. A
country plagued by AIDS, this would only further the crisis. Lack of knowledge
and an increased sexual activity, which is the case in adolescents, creates a
dangerous combination and increases the risk of spread of sexually transmitted
diseases. Misinformation about STDs runs rampant and young adolescents also
find it difficult to consult a doctor due to social barriers. An informative
curriculum of sex education would ensure adolescents being responsible and
would result in the prevention of STDs. It would also result in a reduction in
unplanned pregnancies which also take a toll on young girls and affects both
their physical and emotional health. Not having sex education in schools in a bid
to preserve culture is inconsiderate of the lives of the young citizens of the
country.

Historically, the legal and policy landscape surrounding reproductive rights in

India has been shaped by a complex interplay of religious, cultural, and social
norms. While the country has made significant strides in addressing issues of
gender equality and women's empowerment, the implementation and
enforcement of reproductive rights have often been hindered by entrenched
patriarchal structures and traditional beliefs.

Right to birth control measures is an important aspect of reproductive

autonomy. It provides

that there ought not to be any interference by the state or by any individual in
the issues of

reproduction. A woman must be free to decide and choose the method of birth
control. This

implies that there ought not to be any restriction at all on the contraceptive
decisions of a

woman. There are two terms used simultaneously for this right. One is the ‘Birth
Control’

another is ‘Family Planning. Both are closely connected. It is vital to get that
'Birth Control', is
an individual choice of woman to control her fertility and probably, a couple's
endeavor to

decide family size, while 'family planning' is the public authority/States'

endeavor to restrict

the number of its residents.41 Women worldwide have a fundamental right to

decide if and

when to have children, and access to the information and means to do so and
they cannot be

robbed of their right to control their fertility, health and lives. Lack of
information and access

to contraception increases the number of unwanted pregnancies and women's

and girls’ risks

of maternal mortality and morbidity, including from unsafe abortion. More than
half of the

abortions performed in India are unsafe, leading to an estimated 12,000 women

dying each

year from clandestine abortion complications.42

Access to family planning methods is a fundamental human right that should be

achieved

around the world. Research has shown that globally, 153 million women do not
have access to

family planning services, and over one-fifth of these women live in India where
the needs of

women are not effectively addressed in family planning.51

Supreme Court of India has also recognized this right in broad perspective of
right to

reproductive autonomy as it has stated that this includes women’s right to

refuse participation

in sexual activity, to insist on use of contraceptive methods, or to choose

appropriate birth-

control methods52 The Supreme Court’s holding was reiterated in its later
decisions, Meera

Santosh Pal v. Union of India, 53 and Z v. State of Bihar 54