What does the overturning of Roe v. Wade by the United States Supreme Court tell us about women’s reproductive rights? It tells us that fundamental rights remain elusive globally for women across the spectrum. More so, when you belong to disenfranchised groups. For the uninitiated, Roe v. Wade was a landmark judgment in 1973 that said state regulations restricting access to abortion services were as unconstitutional and against a woman’s right to privacy.

In India, abortion rights are relatively more ‘liberal’, with the Medical Termination of Pregnancy Act, 1971, allowing for termination of pregnancy up to 20 weeks. But the MTP Act has not been without its challenges. How and why are abortion rights negotiated and not fundamental to a woman’s right to live? What forms the core of reproductive legislation in India today?

The socio-economic and conservative stakes involved in banning abortion or providing negotiated access to it, have been an important part of the language of reproductive legislation in India, and globally. Many laws and acts jostle for attention—thus, judgments leading to landmark interventions in women’s health, such as maternal mortality and abortion rights, are in tandem with laws banning commercial surrogacy and regulating reproductive technologies. The first set of laws granting women access and legitimacy to reproductive rights have come through rigorous activism and litigation, while the newer laws on commercial surrogacy and reproductive technologies emerge from more marked interventions from industry and reproductive lobbies.

In India, thus, reproductive legislation occupies a chequered terrain. While some suggest that it is largely empowering, others may see it as debilitating, exclusionary and restrictive. We need to remember that reproductive legislation comes with reproductive litigation, through the concerted effort that activists, civil society participants and women’s groups exert in identifying the need for intervention.

Take the recent Surrogacy Act of 2021. Banning commercial surrogacy has been in the works since 2015, and despite multiple interventions, including from the Rajya Sabha, it was enacted due to accusations of exploitation within the arrangement. A certain form of social conservatism and morality attached to motherhood and honour marked the ban. The paradox of the opposition to the ban on commercial surrogacy laid in the uneasy coupledom of IVF clinicians and surrogacy agents with reproductive health activists—interest groups that had earlier been against each other. Both suggested that regulating the industry that employs women as surrogates is a better step than a ban that would inevitably push the industry underground, leading to far worse exploitative practices. The ban on commercialisation was undertaken in favour of ‘altruistic’ surrogacy, meaning that the surrogate would not be compensated for undertaking the pregnancy, except for essential medical treatment. Such a practice places the surrogate in a disadvantageous position and within the ambit of intrafamilial abuse and exploitation. So, while the Act champions altruistic surrogacy, it also supports the recruitment of women within the Indian family for surrogate work as part of kin obligations and support. This is problematic in many ways—but again resurrects debates regarding how law, legislation and judgments in India continue to seek approval from male kin and the larger patriarchal group to provide women with their basic reproductive rights.

Stay with me as I tell you how. In 2004, in State vs Udayakumar and Ors, the Supreme Court ruled that a woman’s right to abortion must be channelled through the husband and must necessarily include his consent. Thankfully, in 2009, the Supreme Court sensed the need for prioritising women’s reproductive autonomy as a fundamental right, contrary to its earlier understanding. The impact was felt in 2011, when the high court of Punjab and Haryana dismissed a petition filed by a husband against the doctor who carried out an abortion on the wife without his consent (but honoured hers instead); and again in 2017, when the Supreme Court ruled that abortion is an exclusive right of the woman. The Indian patriarchal family continues to be deeply invested in a woman’s fertility, channelled through control over her sexuality and reproductive decision-making. This reflects in litigation judgments across the country, where conservatism tends to rob women of their bodies and selves.

The linkages between patriarchy and legal injunction and judgments are especially potent when seen in relation to laws linked to marriage. The ways in which marriage is imagined within Indian jurisprudence places the onus on parental/spousal authority, especially when it comes to decisions regarding choice. While the ban on child marriage has been an important intervention into safeguarding the girl child and linked fears of maternal mortality—the debates on age of consent have been significant to articulations regarding marital rape and adolescent sexual health. Such as the infamous case of 11-year-old Phulmonee in 19th-century Bengal, who was raped by her older husband on their wedding night, leading to her untimely death, and triggering debates on consensual age versus age of marriage. Early marriage has raised questions regarding familial control over decisions regarding the daughter’s reproductive and sexual choice. Linked to questions of household economies, women’s labour and employment, spatial segregation and division of labour—early marriage is ultimately centred on the rights women have over their bodies and choices.

In this regard, reproductive litigation has impacted the ways in which laws have come to frame reproductive decision-making and access to state-funded welfare schemes in India. The judgment in the Shanti Devi case of 2008-10 is one such important intervention to hold states accountable for maternal mortality in case of institutionalised negligence. As a landless Dalit migrant, Shanti Devi navigated medical apathy in Haryana when she had a miscarriage, but in order to abort her foetus, was shuttled between government facilities due to bed shortage and resource unavailability. She was still considerably weak after her ordeal, but within months was back at the hospital, trying to navigate her next pregnancy. She ultimately died during childbirth. With the support of the Human Rights Law Network, Shanti Devi’s kin were able to seek compensation and create a sustained conversation to enact more robust mechanisms to support public service delivery of schemes such as the National Maternity Benefit and Janani Suraksha Yojana.

Death is a recurring theme in how women’s reproductive lives are lived. The death of 13 tribal women in Chhattisgarh in 2014 at a mass family planning camp, led to much anger regarding the continued identification of women as ‘targets’ in the country’s family planning programme, despite India being a signatory to global movements such as CEDAW (Convention of Elimination of all forms of Discrimination against Women). Again, the death of a 20-something egg provider at a fertility clinic in Delhi in 2015 due to ovarian hyper stimulation went largely unnoticed, until women’s rights groups protested and asked the Medical Council of India to intervene. That the egg donor was a poor Nepali domestic worker who wanted to earn money by selling her eggs was an important part of the narrative of expendability.

Obstetric violence is the reason why most women in India alienate oppressive medical experiences during birthing and other reproductive health interventions. In emerging scholarship, the African-American scholar Dana Ain-Davis, speaks of ‘obstetric racism’, wherein violence is especially directed towards women of colour during treatment. In India, too, women of disenfranchised groups face more violence, scrutiny and lack of access to reproductive health treatment. It is to these stories of violence that reproductive litigation must turn, to help overturn the next Roe v. Wade.

(This appeared in the print edition as "A Chequered Terrain")

(Views expressed are personal)

Anindita Majumdar is a social scientist who researches infertility and assisted reproduction in India