REPRODUCTIVE RIGHTS IN INDIA: EMERGING ISSUES AND LEGAL CHALLENGES.

ABSTRACT

Reproductive rights in India are enshrined in the constitution and supported by various laws, yet  significant barriers persist, particularly for marginalized communities. This abstract examines the  evolving landscape of reproductive rights in India, highlighting emerging issues and challenges  that hinder equitable access to reproductive healthcare. While the Indian legal framework,  particularly through the Medical termination of pregnancy (MTP) Act, the protection of women  from domestic violence Act, and constitutional protections under Article 14, 15 and 21, provides  a foundation for safeguarding these rights, significant legal and societal challenges persist.  Emerging issues such as the criminalization of abortion beyond set gestational limits, lack of  awareness and access to reproductive health services in rural areas, coercive population control  measures, and the intersection of reproductive rights with marital status and gender identity  continue to hinder the effective realization of these rights. Additionally, the stigmatization of  reproductive choices, limited autonomy for adolescent and unmarried women, and inadequate  enforcement of laws contribute to systemic barriers.

INTRODUCTION 

Reproductive rights in India are a vital aspect of women’s health, autonomy, and equality,  encompassing the right to make decisions about one’s own body, fertility, and reproductive well being. while India has made significant strides in recognizing and protecting reproductive rights  through legislation such as the Medical Termination of pregnancy (Amendment) Act ,2021  emerging issues and legal challenges continue to shape the landscape of reproductive rights in  the country. While progress has been made, many women still struggle to access safe, legal, and  affordable reproductive healthcare, especially in rural areas. In a country like India , where  cultural norms and traditions significant influence everyday life, understanding the nuances of  reproductive rights and surrogacy is essential.These complex issues not only touch upon the legal  and medical aspects but also delve deeply into gender, class, and caste dynamics.

LEGAL FRAMEWORK AND RECENT DEVELOPMENTS:

1. Medical Termination of Pregnancy (MTP) Act, 2021: Medical Termination of Pregnancy Act 2021, Sec 3 of the MTP Act allows for the termination of a pregnancy by a registered medical practitioner.

Sec 3(2)

(a) states that when the length of the pregnancy does not exceed twenty weeks, such a medical practitioner is permitted to perform the  procedure;

(b) when the length of the pregnancy exceeds twenty weeks but does not exceed twenty four weeks , it is applicable for such categories of women as may be prescribed by rules  made under MTP Act, which provides that there is no less than two registered medical  practitioners are involved.

The abortion can be carried out considering two overarching factors:

Sec 3 (2) (i) the continuance of the pregnancy would involve a risk to the life of the  pregnant woman or grave injury to her physical or mental health; or

¹Sec (2) (ii) there is a High risk that if the child were born, it would suffer from any  serious physical or mental abnormality.

Sec3(2) (b), Rule 3B in the MTP(Amendment) Rules2021 provides for specific  categories of women who are eligible for termination of pregnancy up to 24 weeks  including those who have had a “change of marital status such as widowhood or divorce may happen during a pregnancy.

The question that has arisen here is whether unmarried woman can be included under  this provision or not.

The Delhi High Court used a restrictive interpretation of Rule 3B (c) and stated that Sec  3 (b) did not apply to an unmarried women.

However, the SC adopted a purposive interpretation approach towards the provision, by  focusing on the “purpose and object which is sought to be achieved by parliament” when  enacting the said statute.

CASE LAW REGARDING ABORTION AND REPRODUCTIVE RIGHTS: 1. ²Suchita Srivastava and Anr v. Chandigarh Administration (2009): This is the  landmark judgment delivered by a 3- judge bench consisting of Justice KG  Balakrishnan; Justice P sathasivam and Justice Dr.BS chauhan; the Supreme Court stated that the reproductive independency is one of the important elements of personal  liberty. It is also associated with the Right to privacy (Art 21³), the Right to bodily  integrity and the Right to live with dignity (Art 21) of the Indian constitution. If a  person becomes pregnant even if they have mental or physical challenges their  pregnancy cannot be ended without permission of the victim’s pregnancy cannot be  terminated without her consent and proceeding with the same would not have served  her best interests SC affirmed the right of a medically challenged person to continue  with pregnancy.

SC modified the order of the Delhi High court, by granting the petitioner her rights to  terminate her ongoing pregnancy of 24 weeks. The 3- judge bench of SC has rightly  used a liberal interpretation of Provisions of clause (c) of Rule 3 B under the Medical  termination of pregnancy ( Amendment) Act 2021 (MTP 2021). To include  unmarried women within its ambit, granting them the right to terminate their  pregnancy.

2. ⁴X V. The Principal Secretary Health and Family Welfare Department, Govt. of NCT of Delhi, (2022). In this case, a 25 year old unmarried woman approached the Supreme Court on appeal from a decision of High Court of Delhi, which rejected her  plea to obtain abortion in her 23^rd week of pregnancy. She stated that while she had  pregnant out of a consensual relationship, her partner refused to marry her. She argued  prompted a change in her marital status under Rule 3 B of the MTP Rules, which  allow women to obtain an abortion between 20 to 24 weeks of pregnancy. The court held that the right to privacy (Art 21) of the Indian constitution and  including the right to reproductive autonomy, allowing pregnant woman to terminate  their pregnancy due to change in marital status. The court held that Rule 3B of MTP  Rules. Unmarried women have access to safe and legal abortions between 20 to 24 weeks of pregnancy under Medical Termination of Pregnancy ( Amendment ) Act  2021 ( MTP 2021).

CHALLENGES IN INDIA:

India faces significant challenges related to maternal health and abortion access:

According to UNICEF India and World Bank data, India courts among the highest number of  maternity deaths worldwide. India sees around 45,000 maternal deaths every year, which means,  on average, one woman dies every 12 minutes due to pregnancy related causes.

Unsafe abortions are the third leading cause of maternal deaths in India. Researcher’s have  shown that half the pregnancies in India are unintended and about a third result in abortion. Only  22% of abortions in India are carried out in public or private health facilities, which means the  majority of women are forced to rely on unsafe or putting their health, safety, and even lives at  serious risk.

Limited access to safe abortion clinics, especially for young and unmarried women. Restrictive  Laws (MTP) Act, 1971⁵limits termination beyond 20 weeks, forcing women to the seek court  permission. Non-medical concerns (economic, career , personal) are not considered in the law.

These challenges highlight the need for improved access to safe abortion services , reduced  stigma, and more inclusive laws to protect women’s reproductive rights and health.

LEGAL CHALLENGES AND CONSTITUTIONAL CONCERNS:

1. Criminalization of Abortion: While the MTP Act provides for termination up to 20 ⁶weeks, it does not accommodate non-medical concerns such as economic hardships or personal crises. Additionally, the involvement of the Protection of Children from sexual  offences (POCSO) Act and the Pre-conception and pre-natal Diagnostic Techniques  (PCPNDT) Act creates gray areas of criminal liability for medical providers, potentially  deterring them from performing abortions.
2. Implementation Gaps: Despite legislative advancements, there are significant gaps in implementation. For instance, the Maharashtra government has failed to establish regional branches of the Maharashtra state commission for women, as directed by  Bombay High Court in 2016, hindering accessibility for women in ruler and remote  areas.

EMERGING ISSUES IN REPRODUCTIVE RIGHTS:

1. Access to Safe Abortion Services: Despite the Medical Termination of Pregnancy (MTP) Act 1971, allowing abortions up to 20 weeks, many women face barriers such as lack of awareness, social stigma, and procedural delays. 
2. Reproduction Rights in Rural Areas:

Women in Rural India often face significant challenges such as limited access to healthcare  facilities, lack of awareness and education, and social stigmas and education, and social  stigmas and norms that discourage seeking reproductive healthcare services.

3. Surrogacy and Assisted Reproductive Technology (ART).

The surrogacy (Regulation) Act, 2021, bans commercial surrogacy and allows only altruistic  surrogacy (where a women surrogate, carries a baby for another individual or couple) for  Indian heterosexual couples who have been married for five years and do not have living children. This exclusive extends to LGBTQ+ individuals, live- in couples, and single,  divorced, or widowed women, raising concerns about reproductive justice and equality.

CONCLUSION:

India has made significant progress in recognizing reproductive rights as part of the  constitutional right to life and personal liberty. Legal reforms, such as MTP (Amendment) Act  2021, and landmark court rulings have strengthened women’s autonomy. A Key emerging issue  is the limited access to reproductive healthcare, especially in rural areas. Privacy concerns with  digitized health data. On the Neglect of reproductive rights for LGBTQ+ and transgender individuals. India must adopt a more inclusive, rights based approach that ensures informed  choice, equality , bodily autonomy for all, including marginalized and LGBTQ+ communities.  Legal reform, awareness, and accessible healthcare are vital to achieving true reproductive  justice.

REFERENCE(S):

1.Medical Termination of pregnancy ( Amendment ) Act 2021 ( sec 3(2) (ii).

2.Suchita Srivastava and Anr v. Chandigarh Administration ( 28 Aug 2009).

³ M.P. Jain, Indian constitutional Law ( Lexis Nexus , Delhi, 8^th edn, 2025)

⁴Case: X vs. The principal secretary, Health and Family welfare department, Govt. of NCT of Delhi and Anr. https://clpr.org.in accessed on 6 July, 2025.

⁵Medical termination of Pregnancy Act, 1971, Act No 34 of 1971. 

⁶National Institutes of Health, https://pmc.ncbi.nlm.nih.gov accessed on 6 June 2025.