Reproductive justice in retrogression

A dominant narrative about reproductive justice in India is that it is encased in a ‘liberal’ legal framework. For example, the Statement of Objects and Reasons appended to the Medical Termination of Pregnancy Act, 1971 (MTP Act) expressly mentions the Act’s intent to ‘liberalise’ access to abortions. More recently, the 2021 amendment to that Act was also animated by the need to ‘ensure dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy.’ The Supreme Court too has been of the view that the MTP Act is a ‘progressive legislation.’ Similarly, a spate of recent legislations around reproduction, including the Assisted Reproductive Technologies Act, 2021 and the Surrogacy (Regulation) Act, 2021, have ostensibly sought to protect women and children from exploitation and harm through the use of these technologies (see here and here). Adding to these statutory mandates, the Supreme Court has recognized that the right to reproductive autonomy (see also here and here) and reproductive health are guaranteed as fundamental rights by the Constitution. 

However, in reality, the legal regulation of reproduction places a range of significant and ever-increasing constraints on reproductive rights, particularly for women. Using the blunt instrument of criminal law to regulate reproduction-related decisions, the State has been increasingly seeking to control, through direct and indirect means, the exercise of their reproductive rights, that is “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….[and] to make decisions concerning reproduction free of discrimination, coercion and violence.”