Judicial Perception on Reproductive Rights: Woman Centric or Fetal Protective

Abstract

A woman’s reproductive rights encompass a comprehensive framework of legal and ethical principles that affirm individual autonomy over reproductive decisions. The multifaceted nature of these rights is evident in their inclusion of positive as well as negative entitlements. On one side, reproductive rights secure a woman’s right to conceive or not to conceive, including decisions on birth control methods, such as undergoing sterilization procedures, to prevent pregnancy. This right is recognized as absolute within the ambit of individual liberty and bodily integrity, and may be described as the reproductive or decisional autonomy of the woman, recognized by legislation and the judiciary even where societal perception differs. Indian courts have recognized the procreative freedom of women, emphasizing access to safe medical support for terminating unwanted pregnancies beyond the permissible gestation period and bringing it within the ‘right to life’. The judiciary’s protection of the rights of mothers over the fetus, within the shield of personal liberty, is established through a series of decisions. Changing judicial trends, however, show that the judiciary is now empathetic towards the life inside the mother, especially once it crosses twenty-four weeks of gestation, and recent judicial decisions underscore this changing attitude. The paper examines the judicial approach adopted in India to harmonize the reproductive rights of women without impairing the ‘right to life’ of the unborn.