“I do not wish women to have power over men, but over themselves” 

                                                                                                   Mary Wollaston Crafts

A feminist is someone who believes in equality and advocates for the social, political, and economic equality of sexes. Feminism is not limited to advocating for women’s rights but includes challenging the norms and structure that perpetuate gender-based inequality. Feminism supports equal opportunity in the workplace, education, personal freedom & it strives to eliminate gender discrimination in all forms. When it comes to reproductive rights, feminists emphasize a woman’s autonomy over her body, access to safe and legal abortion, contraception, and comprehensive health care. In contrast, according to traditional interpretation of natural law, procreation is often considered as an inherent part of human nature and the purpose of marriage. Many feminists argue that such interpretation of natural law reinforces the traditional gender roles and limits women’s autonomy. They believe natural law should protect individual freedom and support the right of women to make their own reproductive choices, free from societal and governmental constraints.

Ancient views on women’s reproductive rights:

In his work The Republic (1906), Plato presents a conservative view on gender roles, particularly regarding women. He suggests that a woman’s primary function is the reproduction of human species, with little to no consideration given to individual pleasure, desire, or sexual identity. In his ideal society, the roles of men and women are largely defined by their biological capabilities, and their personal desires or identities are not factored into the broader social structure. This perspective reflects the more traditional and hierarchical views of gender prevalent in ancient Greek society.

Diotima, a character of Plato ‘s work symposium, asserts that all people are pregnant in body and mind and naturally give birth when they reach a certain age. It is through reproduction that we achieve immortality. This process is divine and therefore beautiful. Those who are pregnant in mind bring forth not bodies but wisdom and other virtues.[1]

To Plato, reproduction does not only mean to get pregnant and give birth, it also includes reproduction of ideas from one person to next. Greek ethical thought is based on the desire of happiness which is considered as an end. Plato sees society through a patriarchal lens in both of his works (The republic & symposium). Where he emphasised on reproduction, highlights gender roles and position of women in his ideal society. He did not fully advocate for having complete autonomy in their reproductive choices. His approach to reproduction is centred on the idea of Eugenics, where women’s reproductive choices are guided by the state for the purpose of producing the best offspring to serve society.

In the same way, Aristotle also delves into the role of women within the household, & unable to participate in politics for the common good.

If we go by the religious text, we find the same traditional view as prevalent in society, the book of genesis states “God blessed them (men and women) and said be fruitful and multiply”.

Bible too is the product of patriarchal society, it states “wives submit yourselves unto your husband as unto your lord”.[2]

In Mulla’s principle of Hindu law states, “the wife is bound to live with the husband to submit yourself to his authority”.

In the light of feminism, few questions arise:

• Are the duties of women in religion and culture solely to submit themselves to their husbands for the sake of fulfillment?
• What about their autonomous status?
• Is there any right to meet contingencies that arise after conception?
• Does a right exist for an individual to choose whether or not to have a child?
• As technological advancement continues to progress, how might the future of women’s reproductive rights evolve in light of these developments?

The denial of bodily autonomy for women is a clear violation of human rights. Many women continue to lack the ability to make decisions regarding their own fertility, influenced by factors such as religious prohibition or pressure from their husband. This deprivation not only affects their physical and mental health but also shortens their life expectancy.

Though feminist have shared their common interest in equality, there are various forms of feminism. The most prominent form of feminism which is concerned with sexism is Radical feminism. It emphasizes the control of women’s reproductive role by men as being the root of patriarchal oppression. 

In 1963, Betty Friedan’s The Feminine Mystique argued that women were growing dissatisfied with their prescribed roles as wives and mothers. This critique helped spark the second wave of feminism, which called for a re-evaluation of traditional gender roles and an end to sexist discrimination. The second wave of feminism was marked as Radical feminism. They demand freedom to choose whether or not to become pregnant and to have access to abortion, contraception.

Inspired by this movement, a landmark case Roe v Wade[3] ,came before US Supreme court.In this case a single woman challenged the constitutionality of Texas abortion laws which proscribed procuring or attempting an abortion except on medical advice for the purpose of mother’s life. It was held that a women’s right to privacy under 14th constitutional amendment includes right to have an abortion nationwide, with restrictions allowed based on the stage of pregnancy.[4]

Reproductive rights include – Right to conception, right to abortion, and right to reproductive health. 

Reproductive rights in international instruments: 

Article 1 of the universal declaration of human rights (UDHR) states all humans are born free and equal.

Article 6 of UDHR states everyone has the right to be recognized before law.

Article 16 of UDHR states everyone has the right to marry and to have a family.

These Articles emphasize women are equal to men, having the right to manage their own affairs including family choices. It gives them the right to choose their spouse and ensure the existence of women within the sphere, particularly in relation to reproductive rights.

The International Conference on Population and Development (ICPD) held in Cairo in 1994 marked the acceptance of a new paradigm in addressing human reproduction and health. For the first time, there was a clear focus on the needs of individuals and on the empowerment of women, and the emergence of an evolving discourse about the connection between human rights and health, linking new conceptions of health to the struggle for social justice and respect for human dignity.[5]

The ICPD referred to the term “reproductive rights” as embracing “certain human rights that are already recognized in … international human rights documents and other consensus documents”. The most mentionable “consensus documents” are the Universal Declaration of Human Rights, and the Declaration and Programmed of Action of the World Conference on Human Rights, Vienna, June 1993.[6]Reproductive rights, according to the ICPD, “rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health.”[7]

Reproductive rights, according to the ICPD, also include the right “to make decisions concerning reproduction free of discrimination, coercion and violence, as expressed in human rights documents.”[8]

The long-standing birth control league of America became ‘planned parenthood’ in 1942, initiated for the participation of women into family planning. It should not only be on the shoulders of Men but on Women too.

Another concept evolved during 20^th century i.e. Eugenics [9], which was brought for the betterment of reproductive health, which advocated that only “fit and healthy” women should bear children, while those deemed unfit should not. But this concept was taken as ‘misnomer’, calling it a form of racism. Many thinkers believe that ‘fit & healthy’ refers to a certain race and color. But it was just for birth control, & reproductive health. Every year millions of women die due to lack of medical facilities, hygiene, sterilization, and even unawareness. 

A mass movement has been held across the world to decriminalize abortion laws for those who carry an unwanted or dangerous pregnancy. Feminists argue that when people are denied access to abortion due to criminalization, restrictive laws or other barriers, their ability to exercise autonomous status is undermined. But laws are not the only thing stopping people from seeking abortion. In some countries, there are laws that only allow abortion in specific circumstances, for example – pregnancy is the result of rape, or in case of severe and fatal injury to the fetus, or the pregnancy threat to life or health of pregnant woman. 

Despite the criminalization of abortion, many countries recognize it as a human right. It was held that “criminalization of abortion constitutes an act of gender-based violence & decriminalization as it perpetuates the stereotypes that women and people with the capacity to get pregnant can only freely exercise their sexuality to procreate and reinforces the gender roles that imposes motherhood as compulsory Destiny”.[10] 

New emerging technologies and future of women’s reproductive rights:

In a society where childless women are often seen as unlucky or incomplete, new technologies are being developed to ensure that women can have children, so they don’t feel inferior or less valuable. In such a society, a woman’s worth is often tied to her ability to have children, making her existence feel meaningless if she remains childless. Many women, despite not wanting to undergo IVF, find themselves going through the process, which can be physically and emotionally painful.

We can argue that no matter how advanced technology becomes, society’s mindset often remains rooted in old beliefs and traditions. Despite technological progress, society still holds the view that married couples should have children, regardless of their health, desire, or circumstances. This mindset has been deeply ingrained over centuries, and new technologies, while offering solutions, still reflect and reinforce these societal expectations. Whether or not a couple is physically fit or even desires children, the pressure remains to have children, and this pressure is often heightened by the available reproductive technologies. In this way, the goal of society and technology is not necessarily to empower individuals, but to uphold a long-standing belief that every married couple must have children.

 Reproductive rights in Indian law: 

Over the last decade, Indian courts have issued several notable decisions recognizing women’s reproductive rights as part of the “inalienable survival rights” implicitly protected under the fundamental right to life. In certain ground-breaking judgements, the courts have even, for the first time, recognized reproductive rights as essential for women’s equality and have called for respect for women’s right to autonomy and decisions concerning pregnancy. 

The constitution of India has recognized it as a fundamental right enshrined in part III of the constitution, particularly Article 14, Article 15, Article 21. It is not expressly mentioned in these Articles but developed through judicial precedent.

The lack of constitutional probing surrounding the right to abortion extends to the SC as well.  The case that comes closest to recognizing an Indian woman’s qualified right to reproductive choice is Suchita Srivastava v Chandigarh Administration, 2009 1 1, which recognized the right of an intellectually disabled woman to continue her pregnancy. In this case, the Supreme Court recognized a woman’s reproductive choices as part of her right to personal liberty under Article 21 of the Indian Constitution.

The law on abortion in India is primarily governed by Sections 312-316 of the Indian Penal Code and the provisions of the Medical Termination of Pregnancy Act, 1971.

In September 2022, the Supreme Court granted a petitioner permission to terminate her 22-week pregnancy in a X v Principal Secretary. The judgement held that the decision to carry a pregnancy to term or terminate it is firmly rooted in a woman’s right to her bodily autonomy and her ability to choose her path in life. It also recognized that an unwanted pregnancy can have serious negative effects on a woman’s life, such as disrupting her education, career, and mental well-being.

In September 2021, the Medical Termination of Pregnancy (Amendment) Act of 2021 came into force, extending the upper gestational limit for abortion from 20 to 24 weeks. Although the amendment did not recognize abortion on demand as a pregnant person’s right, it was heralded as the next step in making Indian abortion laws more progressive. The amendment was a response to the Indian courts receiving requests to access safe medical support from many women with unwanted pregnancies beyond the permissible gestation period. 

But in 2023, the positive developments of 2021 and 2022 appear to have been overshadowed by anti-reproductive rights sentiments. A year after the judgement in X v Principal Secretary, this pro-rights agenda received a major setback and revealed how much more there is to be done for India to transition into a truly liberal and right-based jurisdiction for medical termination of pregnancies. 

In X v Union of India, a 27-year-old married woman, a mother of two, approached the Supreme Court to seek permission for abortion as per the Medical Termination of Pregnancy Act, 1971. The Supreme court rejected granting permission for abortion and saying that the fetus has a fundamental right to live.

In these cases, we can observe an upward and downward journey in the advancement of women’s reproductive rights, particularly with regard to abortion. The court has upheld the termination of pregnancy only under exceptional circumstances, in accordance with the provisions of the Constitution and the Medical Termination of Pregnancy (MTP) Act, 1971. Additionally, it appears that the court has shown a tendency to prioritize the rights of the fetus in its rulings. However, it should be emphasized that for women who are fit to continue with their pregnancy, the right of the fetus to live cannot be denied.

Women’s reproductive rights have seen both progress and setbacks due to the influence of outdated beliefs and legal systems. While feminist movements have fought for women’s right to make choices about their own bodies, many laws still prioritize the rights of the fetus over women’s reproductive autonomy. Some positive changes, like the 2021 and 2022 amendments to India’s abortion laws, show progress, but challenges remain. There is a need for legal reforms that fully support women’s freedom to make decisions about their pregnancies without external control. As technology continues to advance, it should be used to empower women, not reinforce old gender roles. Moving forward, it’s essential that women are given the right to choose, ensuring their reproductive rights are recognized as fundamental human rights, free from societal or legal restrictions.

[1] The symposium, section 9:204d_204e , available at https://www.sparknotes.com/philosophy/symposium/section10/.

[2] US Jha Mehta, L Menon, Status of Indian women: crisis and conflicts in gender issues,34 (Kanishka publisher , distributor, New Delhi , edition 2, 2004)

[3] Roe v. Wade, 410 U.S. 113 (1973)

[4] International Conference on Reproductive Health, Mumbai (India), 15-19 March 1998, jointly organized by the Indian Society for the Study of Reproduction and Fertility and the UNDP/UNFPA/WHO/World Bank Special Programme of Research, Development and Research Training in Human Reproduction.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] National human genome research institute, available at https://www.genome.gov/about-genomics/educational-resources/timelines/eugenics.

[9] International planned parenthood federation,(28 sept 2023), available at https://www.ippf.org/featured-perspective/global-abortion-rights-movement-unstoppable.

[10] Suchita Srivastava & Anr vs Chandigarh Administration on 28 August, 2009 AIR 2010 SUPREME COURT.