WOMEN AND CRIMINAL LAW.

Right to Reproductive Choices

INTRODUCTION

Reproductive rights are the rights of individuals to decide whether to reproduce

and have reproductive health.

This may include an individual's right to plan a family, terminate a pregnancy,

use contraceptives, learn about sex education in public schools, and gain access
to reproductive health services.

It also includes Right to information and means to do so right to highest

standard of reproductive health, right to make decisions concerning
reproduction free of discrimination, coercion and violence.

Reproductive rights consist of three broad categories of rights:

1. Rights to reproductive self-determination,

2. Rights to sexual and reproductive health services, information, and

education, and

3. Rights to equality and nondiscrimination

Judicial Recognition of Reproductive Rights as Fundamental and Human

Rights

The Supreme Court of India and several state high courts have made important
strides in recognizing the denial of reproductive rights as violations of women’s
and girls’ fundamental and human rights.

In 2011, the Delhi High Court issued a landmark joint decision in the cases of
Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors. and Jaitun v.
Maternity Home, MCD, Jangpura & Ors.concerning denials of maternal
health care to two women living below the poverty line.

The Court stated that “these petitions focus on two inalienable survival rights
that form part of the right to life: the right to health (which would include the
right to access and receive a minimum standard of treatment and care in public
health facilities) and in particular the reproductive rights of the mother.”

ABORTION

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In India 7 million abortions are taking place annually.About 50 percent of total

abortions in India are considered illegal. The Medical Termination of Pregnancy
Act and related Rules regarding abortion were clarified by the Supreme Court
recently. The SC noted that under Article 21, a woman’s right to reproductive
freedom is an integral component of her freedom. The Supreme Court also ruled
that denying an unmarried woman access to a safe abortion breaches her
autonomy and freedom.

Abortion laws in India

The legislations that have direct or indirect provisions related to abortion laws
are:

 IPC, 1860

 Medical Termination of Pregnancy (MTP) Act

 The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of

Sex Selection) Act, 1994

 Protection of Children from Sexual Offences Act (POCSO), 2012

Indian Penal Code (IPC), 1860

Section 312

This Section punishes the person who voluntarily causes a miscarriage of the
bearing female with imprisonment that can be extended up to 3 years, or fine, or
both. If such a female is ‘quick with child’, then the punishment becomes
severe. A person causing a voluntary miscarriage of a female quick with the
child can be imprisoned for a term extending up to 7 years, or fine or both.

Section 313

This Section deals with punishing the persons who cause abortion of a female
without the consent of that female. Any person found liable under this section
shall be punished with life imprisonment or imprisonment that can be extended
to 10 years.

Section 316

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If a person knows that an act can cause the death of a bearing female and he/she
would be charged for culpable homicide, the person does that act and the quick
unborn child dies as a result of such act, such a person shall be punishable under
this Section, irrespective of whether the bearing mother dies or not. Any person
held liable under this section would be punished with imprisonment term up to
10 years and will also be liable to pay a fine.

Medical Termination of Pregnancy (MTP) Act

MTP Act provide for the termination of certain pregnancies and for matters
connected therewith by Registered Medical Practitioners. The MTP Act, 1971
has been recently amended by the Medical Termination of Pregnancy
(Amendment) Act, 2021. This amendment has increased the time period within
which an abortion can be legally conducted.

Section 3

The amendment raised the maximum gestational age at which a woman may
obtain a medical abortion from 20 weeks under the MTP Act of 1971 to 24
weeks. Now, a single qualified medical professional’s opinion might be used to
access the MTP up to 20 weeks into the pregnancy. From 20 weeks up to 24
weeks, the opinion of two registered medical practitioners would be required.

Section 4

This Section mentions the place where the termination of pregnancy can be
legally done. Such places as mentioned in this section are the hospitals that are
established or maintained by the government. Further, clause b of this section
states that abortion can be done at any other place that has been approved by the
government or a District Level Committee constituted by that Government with
the Chief Medical Officer or District Health Officer as the Chairperson of the
said Committee. The District Level Committee shall consist of at least three
members not exceeding five members including the Chairperson, as the
Government may specify from time to time.

Protection of privacy of a woman Section 5A

It penalizes medical practitioners who fail to protect the privacy and

confidentiality of women who wish to terminate their pregnancy.

FEMALE FOETICIDE
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In olden days it was impossible to determine the sex of the baby in the womb of
mother until it was delivered. But now with the help of modern techniques it
became possible to ascertain the sex of the child in the womb even in the early
stages of the pregnancy.

The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex

Selection) Act, 1994 regulates the use of pre-natal sex determination technique
for the purpose of detecting genetic or chromosonal disorders and not for the
purpose of killing the female child in the mothers womb.

This Act consists of total 34 sections and 8 chapters.

The Pre-Conception and Pre-Natal Diagnostic Techniques

(Prohibition Of Sex Selection) Act.

An Act to provide for the prohibition of sex selection, after conception and for
regulation of prenatal diagnostic techniques for the purposes of detecting
genetic abnormalities or metabolic disorders or chromosomal abnormalities or
certain congenital malformations or sex-linked disorders and for the prevention
of their misuse for sex determination leading to female foeticide and arrest the
declining sex ratio in India.

Amendment in 2003

 Amendment of the act mainly covered bringing the technique of pre

conception sex selection within the ambit of the act

 Bringing ultrasound within its ambit

 Empowering the central supervisory board, constitution of state level

supervisory board

 Provision for more stringent punishments

 Empowering appropriate authorities with the power of civil court for

search, seizure and sealing the machines and equipments of the violators

 Regulating the sale of the ultrasound machines only to registered bodies

Protection of Children from Sexual Offences Act (POCSO), 2012

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This Act establishes an age bar on consensual sexual activities at 18. Under this
act, all pregnant females below the age of 18 are considered to be rape survivors
even of the sexual act was consensual. Generally, pregnancy of minor rape
victims is allowed to be terminated by the court. But, if a rape survivor’s
pregnancy has extended beyond the 20- week limit established under the MTP
Act, courts traditionally split.

However, in 2015 the Supreme Court allowed termination of post-20 week’s

pregnancy where a team of doctors determined that the pregnancy would harm
the girl’s mental and physical health. It is an important precedent paving the
way for increased access to safe abortion services for minor rape survivors

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