The Right to Reproduce: In New India, women must have full legal rights on their own wombs and how they procreate

Reproductive Rights are the basic rights of any human being — and they can be evoked even by an estranged wife who wants to have another child by the very man with whom she is fighting a divorce case. So ruled a court in Maharashtra recently.

Welcome to the 'Brave New World' where reproduction is not just a man-woman thing. A world where sexual intercourse is not a prerequisite to conception, infertility is not considered a social stigma and is now a treatable as a biological malfunction.

Most importantly, where a woman has the legal right to choose how and when she wishes to reproduce.

In this strange case, the woman, who is also a professional, has demanded that her estranged doctor husband, by whom she already has one child, should assist her to have another child as she wants her child to have a genetically related sibling. Since the restitution of conjugal rights is not possible given the rather bizarre circumstances, she has asked that the conception should be through ART (Artificial Reproductive Technology). She expressed a sense of urgency as she is 35 and her 'biological clock is ticking'.

Her husband opposed her plea as being “illegal, an illusion and against social norms”.

But, Judge Swati Chauhan gave an unexpectedly strong ruling in the Nanded Family Court where the hearing took place — she upheld the woman’s right to get her husband’s sperm for artificial insemination. She, in fact, called it a “legitimate, eugenic choice”, adding that “seeking ART procedure is neither in breach of any law nor is it violating any social written or unwritten norms.” The judge also said that the husband’s consent was crucial in such a case, but by “unreasonable refusal he may expose himself to the legal and logical consequences which may follow.”

The couple was advised to go for counselling to a fertility expert.

It will be interesting to see how this case finally plays out in court. But, more importantly, Judge Chauhan has raised several important points that also have a bearing on other contentious contemporary issues relating to infertility, ART, surrogacy and even abortion.

For most women in a patriarchal society such as ours, their reproductive choices are certainly not their own. They are steered by family and social pressures which are so insidious and pervasive that the women themselves no longer know what they truly want. Most women are unaware of the fact that they have full legal rights over their own wombs — for instance, a woman cannot be coerced into giving birth to a child even by her own husband.

And yet, how many women know this?

How many women know that they cannot be forced to go through repeated abortions in the quest for a male child?

In 2012, Justice KS Puttuswamy ruled that women have a Constitutional right to make their own reproductive choices and that this was a part of personal liberty as recognised by the Indian Constitution.

An interesting aspect of this judgement was that it recognised privacy as an inalienable right connected to all other Fundamental Rights.

In the specific case of the Maharashtra woman, privacy, per se, is not the pivotal issue as she has gone to court and publicly demanded her husband’s sperm for artificial insemination. But in the case of infertile couples who choose to go in for ART, privacy is the crux of the issue. Most couples would prefer to keep their reproductive choices private — more so if they have been diagnosed as infertile.

The proposed Surrogacy Bill, which is currently in limbo, has many problems that have not been addressed. Among them is the fact that it completely erodes privacy. The couple seeking infertility treatment, the donors who provide eggs or sperm in the absence of viable gametes and the surrogates who offer their wombs have the right to demand privacy when they make their personal reproductive choices for which they could be unnecessarily stigmatised. If the Bill were to come into force in its present form, every little step of theirs would be in the public domain. The woman’s rights to exercise her reproductive choices would be completely taken away from her.

And at the bottom end of the pecking chain is the surrogate. When a surrogate agrees to carry a baby for another woman, she is exercising her reproductive rights too. She also has a right to charge for the job that she is legitimately performing. The proposed Surrogacy Bill takes away her freedom to choose for whom and when she will carry a child. It also takes away her right to earn a living by performing a job of her choice. Instead of banning paid surrogacy, the lawmakers should actually consider recognising it as a profession and ensure the women get all the ensuing benefits like proper contracts, medical insurance and so on.

Then there are other contentious questions. Do a woman’s reproductive rights extend to her having the right to choose the sex of her unborn child? Does she have the right to demand the abortion of an early unwanted pregnancy due to her own personal reasons without being questioned? Does she also have the right to refuse to bear children even for her own spouse?

Since most women have no clear idea about any of these issues, when in doubt, they decide to go in for illegal and unsafe abortions.

And finally, in the case of the Maharashtra couple, does the husband have reproductive rights too?

Can he refuse to part with his gametes and if he does so, what would be the 'legal and logical consequences' he would have to face?

(Reproductive Rights, according to a judgement passed by a Family court in Nanded, are the basic rights of any human being).

Also read: The pressure to look good is killing women. Some, slowly. Some, by suicide