This article has been authored by Anamika Tiwari, a student at O P Jindal Global Law School, Haryana.
Women always had to demand and fight for basic human rights. Article 25 of the Universal Declaration of Human Rights provides the right to a standard of living adequate for the health and well-being of an individual. Even though it does not provide direct protection to the reproductive rights of women, it provides protection to other rights that support reproductive rights such as privacy, consent, equal rights in marriage, no discrimination, etc. In the past few years, the Indian courts, through various judgments, have ruled that reproductive rights are an integral part of the fundamental rights of individuals. Women's right to autonomy and decision-making with regards to pregnancy has been recognized as an essential right for women's equality. However, in a hetero-patriarchal ableist country like India, laying a reproductive justice framework for women with disabilities seems to be a difficult aim to achieve.
Disability and Reproductive Rights
Article 23(1)(b) of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) states that persons with disabilities have the right to access reproductive and family planning education and decide freely and responsibly the number of children and spacing between them. Section 10(1) of the Rights of Persons with Disability Act, 2016 (RPwD) obligates the appropriate government to make necessary information regarding reproductive and family planning accessible to persons with disability. Under Section 25(2)(k), the appropriate government should ensure that measures, schemes and programs, to promote healthcare and prevent disabilities must include sexual and reproductive healthcare for women. Section 39(2)(c) of the RPwD Act requires the appropriate government to undertake campaign and sensitization programs to "foster respect for the decisions made by persons with disabilities on all matters related to family life, relationships, bearing and raising children."
Despite these legislations, women with disabilities suffer the most. They are subjected to three-fold discrimination i.e., (i) Being a woman (ii) Being disabled (iii) Being a disabled woman, which is the most vulnerable group. They are often seen as asexual beings and their sexuality is denied which results in denial of even recognition of their sexual and reproductive rights. In the past few years, even though their employment and educational rights have been recognized, their sexual and reproductive rights have been largely ignored.
Many activists say that being an invisible group they remain outside the reach of various gender-specific health awareness programs such as preventive health care, family planning services, and sexual and reproductive health programs. They are hardly referred to screening tests for gynecological or breast-related medical disorders. A study conducted by World Bank reveals that women with disabilities are 13-50% less likely to receive medical care and assistive devices when compared to men with disabilities.
Reproductive Rights of Mentally Disabled Women:
Section 3(4)(a) of the Medical Termination of Pregnancy Act, 1971 states that termination of pregnancy of a woman with mental illness shall not be allowed without the written consent of her guardian. In India, the Supreme Court has dealt with women suffering from mental disability in the following cases:
Z vs State of Bihar and Others
In this case, the court stressed on the right of bodily autonomy, integrity, and sovereignty of a woman and said that the concept of a guardian for the termination of pregnancy should not be over-emphasized. The victim, in this case, was suffering from "moderate mental retardation" and was denied the right to abortion because of a lack of consent from a guardian or spousal consent. The Supreme Court criticized this insistence by stressing on the facts that-(i) The victim was not a minor (ii) Her pregnancy was a result of rape (iii) She did not want to go through with her pregnancy and her medical reports indicated no threat to her life due to the termination of her pregnancy. The court held that dilution of the right to consent to women suffering from mental retardation would be a gross violation of their reproductive rights.
Suchita Srivastav vs Chandigarh Administration
In this case, a 19-year-old girl had become pregnant as a result of an alleged rape while she was an inmate in a government welfare institution in Chandigarh. The Chandigarh Administration, who was a respondent in this case, had approached the court requesting the termination of her pregnancy keeping in mind that she was not only mentally retarded but also an orphan and there was no one to look after her and her prospective child. A three-member board was set up led by the chairperson of the department of psychiatry to evaluate the mental status of the victim and it was opined that the victim fell in the category of "mild retardation". The principal question, in this case, is if the pregnancy of the victim could be terminated and if so, who will be the consenting guardian.
The expert body constituted by the High Court of Punjab and Haryana gave various findings which led to the High Court's decision to allow the victim to terminate her pregnancy. The findings include the mental and physical stability of the victim, her ability to sustain herself and her child, her knowledge of a child born outside wedlock, her ability to understand that she had been impregnated as a result of rape, the risk to mental and physical health, the possibility of undue influence, lack of independence, etc. All these findings led the High Court to exercise its parens patriaejurisdiction to decide on the termination of the pregnancy of the victim. Despite the wishes of the victim to continue with her pregnancy, the High Court ordered that the victim's pregnancy could be terminated.
Aggrieved by the order of the High Court, the appellants approached the Supreme Court. The issue before the Supreme Court was whether the pregnancy of a woman could be terminated without her consent. The court stayed the decision of the High Court reasoning that a plain reading of section 3 of the Medical Termination of Pregnancy Act states that the consent of a woman is required on whom the procedure of abortion is being performed. The court, in this case, observed that it was not in the best interest of the victim to terminate her pregnancy without her consent when she was not a minor and had shown willingness to continue with her pregnancy. The Court emphasized that the persons who suffer from borderline, mild or moderate mental retardation are capable of being good parents. The Court regarded forced sterilization of mentally retarded persons as violative of the Right to Equality as enshrined in Article 14 of the Constitution.
Progressive but Problematic
The decision of the Supreme Court in Suchita Srivastav vs Chandigarh Administration comes out to be a progressive one. However, it sets a dangerous precedent by strongly differentiating between the right of a mentally ill person and persons with intellectual disabilities, creating stereotypes about mentally ill persons. The Supreme Court stated that the provision of section 3(4)(b) unambiguously states that the consent of a pregnant woman is required to terminate her pregnancy. However, the exception provided in Section 3(4)(a) states that the pregnancy of a mentally ill woman cannot be terminated without the written consent of her guardian. In this case, even though the State is the guardian of the victim as she is an orphan and was placed in a government-run welfare institution, the rights of the State cannot be automatically extended to decision-making regarding the termination of her pregnancy.
The Court emphasized on the fact that the woman did not suffer from "mental illness" but "mild to moderate mental retardation." This distinction was used by the Supreme Court to argue that mental illness or unsoundness of mind does not come under the ambit of mental retardation. This is problematic as laws governing the rights of persons with disabilities also govern the rights of persons suffering from mental illness and persons suffering from mental illness should be accorded the same rights as other persons with disabilities. Both the persons suffering from mental illness and intellectual disabilities should be placed equally within the reproductive justice framework and should be given the right to consent before the termination of their pregnancy. Creating a distinction between persons suffering from "mental illness" and persons suffering from "mental retardation" would further perpetuate stereotypes for people suffering from mental illness and deprive them of their agency and reproductive autonomy.
Even though there have been legislations enacted for the rights of people with disability, unfortunately, these legislations have failed to recognize the intersectionality of discriminations disabled people go through. However, effective implementation of positive measures of legislations like the Rights of Persons with Disabilities Act would entitle disabled women equal rights in various spheres of life.
With respect to women suffering from mental illness, they should not be denied the right to consent as given in section 3 of the MTP Act in cases of termination of pregnancies. The discourse of distinction between persons with "mental illness" and "mental retardation" would further marginalize women with mental illness. Women suffering from mental illness have a right to bodily integrity and reproductive autonomy and section 3(4)(a) of the MTP Act should be amended in such a way that it does not dehumanize or discriminate against the marginalized community.