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Curious Case of ‘Reproductive Rights’: Indian and International Perspective*

Part I: Introduction

Evolving jurisprudence on the global reproductive rights framework is based on two key-

principles: (a) the right to reproductive healthcare; and (b) the right to reproductive self-

determination. The human rights inherent in the protection of reproductive rights are as

follows: (a) the right to life, liberty, and security; (b) the right to health, reproductive health,

and family planning; (c) the right to decide the number and spacing of children; (d) the right

to consent to marriage and to equality in marriage; (e) the right to privacy; (f) the right to be

free from discrimination on specific grounds; (f) the right to be free from practices that harm

women & girls; (g) the right not to be subjected to torture or other cruel, inhuman, or

degrading treatment; (h) the right to be free from sexual violence; (i) the right to enjoy the

benefits of scientific progress and to consent to experimentation; and, (j) the right to

information (qua reproduction and sterilization) and education.

Right to procreate in a good sense of the term draws impetus from the right to marry. In the

case of Pierce v. Society of Sisters1, it was held that, the basis for protecting the right to

marry is that it safeguards children and families and thus, draws meaning from related rights

of child-rearing, procreation, and education. In the case of, Maynard v. Hill2, the United

States Supreme Court characterised marriage as the foundation of the family and of society,

without which there would be neither civilisation nor progress. Later, in the case of Meyer v.

Nebraska3, the United States Supreme Court recognised that the right to marry, establish a

home and to bring up children was a central part of the liberty protected by the ‘due process

clause’. Jurisprudential developments of high sightings were witnessed qua the ‘right to

marry’, when the United States Supreme Court in the case of Loving v. Virginia4, reversed its

*Shivam Goel; B. Com Honours, LL.B., LL.M. (NUJS); Author: Corporate Manslaughter & Corporate

Homicide: Scope for a New Legislation in India, Partridge India (June 26, 2015), ISBN-10: 1482846837,

ISBN-13: 978-1482846836; International Arbitration with Special Focus on Bahrain, Lambert Academic

Publication, ISBN: 978-3-659-60665-6; and Concept of Rights in Islam, Lambert Academic Publication;

ISBN-10: 3659641448; ISBN-13: 978-3659641442 1 268 U.S. 510 (1925) 2 125 U.S. 190 (1888) 3 262 U.S. 390 (1923) 4 388 U.S. 1 (1967)

In this case, one Mildred Loving (a black woman), and Richard Loving (a white man), were sentenced to

imprisonment for having married each other, despite the fact that the Virginian Anti-Miscegenation Statute

prohibited marriage between a “white” and a “coloured” individual. The United States Supreme Court declared

the Anti-Miscegenation Statute of the State of Virginia (the Racial Integrity Act, 1924) as un-constitutional,

being derogative of the equality clause (the fourteenth amendment) of the Constitution of the United States of

America.

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previous decision in Pace v. Alabama5, thereby holding that right to marry was a

fundamental right. The court, threadbare held that, freedom to marry has long been

recognised as one of the vital personal rights essential to the orderly pursuit of happiness by

free men. The United States Supreme Court, further held in the case of Boddie v.

Connecticut6, that, “marriage involves interests of basic importance in our society”.

Speaking with deliberation, about the right of choice in marriage, the Supreme Court of India

in the case of Gang-rape Ordered by Village Kangaroo Court in W.B., In re7, categorically

held that an inherent aspect of Article 21 of the Constitution of India, 1950, would be the

freedom of choice in marriage.

To say ‘right to procreate’ is in the nature of, and as a matter of fact, an off shoot of, ‘right to

life’, and is thus, of fundamental (or universal) consequence, is not a flawed proposition; but

to see ‘right to procreate’ as a right in absolution, is flawed, not on one but on two counts.

Firstly, the Hohfeldian analysis of rights and duties is testamentary to the fact that, there are

no ‘absolute rights’, and all rights in the nature of ‘claims’ have corresponding ‘duties’,

attached to them. Secondly, ‘right to life’ means right to life with human dignity and not just

mere animal existence.8 Thus, ‘right to procreate’ can be regulated by the State (in the

interest of justice) by qualifying it or by limiting it, thus making ‘family planning’ necessary,

this in law holds good. Hence, ‘right to procreate’ is a fundamental right but with necessary

qualifications of ‘family planning’ and ‘right of women to health-care, safety and hygiene’.

More-over, laws prohibiting marriage between minors (or with a minor), close relatives or, of

a person with other person suffering from a venereal disease, in fact is good in law. However,

it is noteworthy that, in the case of Moore v. City of East Cleveland, Ohio9, the United States

Supreme Court, in a plurality opinion, held that, State power over domestic relations is not

without constitutional limits. The ‘due process clause’ requires a showing of justification

when the government intrudes on choices concerning family living arrangements, in a

manner which is contrary to deep-rooted traditions.

5 106 U.S. 583 (1883) 6 401 U.S. 371 (1971) 7 (2014) 4 SCC 786, Para 16 8 Field, J. in the case of, Munn v. Illinois, 94 U.S. 113, held that the term ‘life’ means something more than

mere animal existence. This statement has been quoted with approval in the following judgments of the

Supreme Court of India: Kharak Singh v. State of U.P., AIR 1963 SC 1295; Sunil Batra v. Delhi

Administration, (1978) 4 SCC 494; Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545. 9 431 U.S. 494 (1932)

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Observation of the Honourable Supreme Court of India, in furtherance of the discussion will

be of much relevance. In the case of Javed v. State of Haryana10, the Supreme Court of India

observed that: “...It may be permissible for Muslims to enter into four marriages with four

women and for anyone whether a Muslim or belonging to any other community or religion to

procreate as many children as he likes but no religion in India dictates or mandates as an

obligation to enter into bigamy or polygamy or to have children more than one. What is

permitted or not prohibited by a religion does not become a religious practice or a positive

tenet of a religion. A practice does not acquire the sanction of religion simply because it is

permitted. Assuming the practice of having more wives than one or procreating more

children than one is a practice followed by any community or group of people, the same can

be regulated or prohibited by legislation in the interest of public order, morality and health

or by any law providing for social welfare and reform... India being a democratic country

has so far not chosen to go beyond casting minimal disincentives and has not embarked upon

penalising procreation of children beyond a particular limit. However, it has to be

remembered that complacence in controlling population in the name of democracy is too

heavy a price to pay, allowing the nation to drift towards disaster.” (emphasis-supplied)

Global avant-garde understanding of the ‘right to procreate’ is moving in a direction which

emphasises upon giving high regards and consideration to the discretion of women so far as

reproduction is concerned, much because of the realisation, in regards to, the mental and

physical toll that pregnancy has on a woman’s physical health and mental well-being. One of

the earliest cases, showcasing advancement of judicial thought qua the reproductive well-

being and discretion of woman was the case of, Rex v. Bourne11. In this case, Dr. Alex

Bourne (a distinguished gynaecologist) performed an abortion operation on a 14-year-old-

girl, who had been gang-raped by a group of soldiers. Dr. Alex Bourne, for having the

operation performed, was charged with felony. In defence, Dr. Alex Bourne argued that, the

operation was performed not only to preserve the life of the girl but also her mental health.

Dr. Alex Bourne was subsequently released with the verdict of ‘not guilty’. This case is of

potential significance, much because, it suggests that, no matter how stringent the law is, the

courts will not convict for compassionate reasons based on “factors” in each individual case.

10 (2003) 8 SCC 369: MANU/SC/0523/2003 11 (1939) 1 K.B. 687

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The “factors” in this case were: the woman was under-age; she was brutally raped; and the

fact that the rapists were none other than the official guardians of the law.12

Note should also be taken of the case, K.L. v. Peru13, a case that was brought against the

Peruvian Government under the Optional Protocol to the Civil and Political Rights Covenant,

in furtherance of adjudication of which, in the year 2005, the Human Rights Committee

issued a landmark ruling. This case involved a woman who was forced by the State hospital

authorities to carry a pregnancy to term, even though she carried an anencephalic foetus that

threatened her health and had no chance of survival. The Human Rights Committee ruled in

favour of the woman, recognizing that, denying her an abortion in a circumstance where it

was legal, violated her ‘right to privacy’, and that forcing her to carry the pregnancy to term

constituted ‘cruel, inhuman and degrading treatment’. This decision is a testimony, revealing

how the restrictive traditional perception of reproductive rights as a socio-heath issue can be

broadened through dynamic advocacy skills, bringing to fore claims that shall illumine the

civil and political rights implicated in reproductive rights violations. Another case,

concerning progressive and beneficial interpretation of law, furthering the cause of

reproductive rights in regards to woman, is the case of, Society for the Protection of the

Unborn Child (SPUC) v. Grogan (Case 159/90). This case concerned, the officers of the

students’ union who provided information in Ireland about the availability of legal abortion in

the U.K. An action was brought by the SPUC alleging that this was contrary to the Irish

Constitution. The defence of the officers’ was based on the freedom to provide services

within the Community and freedom of expression contained in the ECHR (European

Convention on Human Rights) which forms part of the Community law as a general

principle. The ECJ (European Court of Justice) evaded this issue. Since the students’ union

did not have economic link with the clinic whose services they advertised, the provision of

information about the clinics was not an economic activity within the treaty. As the issues fell

outside the scope of the EC law, it was held that, the officers could not rely on either the

provisions on freedom to provide services in the treaty or on general principles of law.14 An

12 See: George Dennis O’ Brien, The Church and Abortion: A Catholic Dissent, Chapter 2: Abortion and Law,

Rowman & Littlefield Publishers, 2010 edition, p.29-30 13 See: K.L. v. Peru, International Covenant on Civil and Political Rights,

http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/KL%20HRC%20final%20decision.

pdf, Visited on: 24-06-2015 14 See: Josephine Steiner & Lorna Woods, EU Law, Chapter 6: General Principles of Law, Oxford University

Press, 10th Edition, p. 136

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important observation was made in the case of L.C. v. Peru15, in this case, the United Nations

Committee on the Elimination of Discrimination against Women held that, the Government’s

denial of legal abortion services to a 13-year-old girl whose health was at risk constituted

discrimination against women and this in turn reinforced gender stereotypes.

Issues qua presumption of marriage and legitimacy of children: In English law, when a

man and a woman live together as husband and wife being married to each other, they are

said to “cohabit” and are referred to as “cohabitees”. This relationship is distinguished from

the relationship of marriage that gives rise to a particular status. As the society advanced and

morals underwent social change, increased recognition was given to the rights and

obligations qua the cohabitees. Professor Martin L. Parry, in his much recognised work, The

Law Relating to Cohabitation (Second Edition, p.7), states as follows: “the legal

consequences of cohabitation have developed on an ad hoc basis depending upon the context

in which the relationship falls, to be considered and the nature of cohabitation. This

development has taken place under the general umbrella of family law thereby reflecting an

acceptance that those who cohabit as husband and wife can properly be described as

members of a family provided that the relationship is of sufficient permanence and stability.”

In A. Dinohamy v. W.L. Balahamy16, the Privy Council held that, where a man and a woman

are proved to have lived together as a man and wife, the law will presume, that they were

living together in consequence of a valid marriage, unless the contrary can be proved.

As per the laws prevailing in India, ‘presumption of marriage’ is available if a man and a

woman are living under the same roof and are cohabiting for a number of years.17 Prolonged

and continuous cohabitation raises a presumption in favour of marriage and against

concubinage.18 This proposition of law is in tune with the language and the intent of Section

5019 and Section 11420 of the Indian Evidence Act, 1872. In the case of S.P.S.

Balasubramanyam v. Suruttayan21, the Supreme Court of India held that, if a man and

15 See: L.C. v. Peru, http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/CEDAW-C-

50-D-22-2009%20English%20(clean%20copy).pdf, Visited on: 04-07-2015 16 AIR 1927 PC 185: (1928) 1 MLJ 388 17 See: Gurubasawwa v. Irawwa, (1997) 1 HLR 695 (Karn) 18 See: Gokal Chand v. Parvin Kumari, AIR 1952 SC 231; Mohabbat Ali Khan v. Mohd. Ibrahim Khan,

(1928-29) 56 IA 201: AIR 1929 PC 135; Ranganath Parmeshwar Panditrao Mali v. Eknath Gajanan

Kulkarni, (1996) 7 SCC 681; Sobha Hymavathi Devi v. Setti Gangadhara Swamy, (2005) 2 SCC 244 19 See: Illustration (a) of Section 50 provides that: “The question is, whether ‘A’ and ‘B’ were married. The fact

that they were usually received and treated by their friends as husband and wife is relevant.” 20 It refers to the common course of natural events, human conduct and private business. (Section 114: Court

may presume existence of certain facts) 21 1992 Supp (2) SCC 304

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woman are living together under the same roof (and are cohabiting) for a number of years,

then there is a presumption under Section 114 of the Indian Evidence Act that they live as

husband and wife; children born to them are legitimate. In Tulsa v. Durghatiya22, the

Supreme Court held that when a man and a woman live together for a long spell, then there is

a presumption in their favour; of them been married; unless rebutted vide convincing

evidence. In the case of Gokal Chand v. Parvin Kumari23, the Supreme Court categorically

stated that, a couple would not get legitimacy, if the evidence of them living together was

rebuttable. Lastly, in the case of Mohammad Bauker v. Shurfoon Nissa Begum24, the Privy

Council upheld the legitimacy of children of Mohammedan parents despite the fact that, there

wasn’t any concrete proof qua their marriage. The court drew impetus from couple’s

prolonged and continuous cohabitation. The court held that, where the couple lived together

for a long time, there shall be presumption of marriage in their favour and the child born from

such a relationship shall enjoy all rights qua legitimacy.

Part II: International Framework on the Right to Reproduce (Right to Procreate)

The Preamble to the Constitution of the World Health Organisation (WHO) states that, it is

one of the fundamental rights of every human being to enjoy the highest attainable standard

of health. The term ‘health’, here, encompasses within its ambit women’s right to

reproductive health. The right to health carries significant importance with reference to

women, more particularly, keeping in view their biological structure and child bearing

capacity.

Article 16 (1), of the Universal Declaration of Human Rights, 194825, states that: ‘Men and

women of full age, without limitation due to race, nationality or religion, have the right to

marry and to found a family. They are entitled to equal rights as to marriage, during marriage

and at its dissolution.’ Thus, what can be inferred from the language of Article 16 (1) of the

Universal Declaration of Human Rights is that, the right to procreate, in furtherance of, the

right to establish a family is a basic human right, having a universal application. Article 25

further states that, everyone has the right to a standard of living adequate for the health and

well being of himself and of his family.

22 (2008) 4 SCC 520 23 AIR 1952 SC 231 24 (1859-61) 8 MIA 136 25 See: The Universal Declaration of Human Rights, http://www.un.org/en/documents/udhr/, Visited on: 20-06-

2015

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Article 11, Article 12 and Article 14 of the Convention on the Elimination of All Forms of

Discrimination against Women, 1979, in affirmative terms hold that, States shall take

necessary measures to eliminate discrimination against women in the field of health-care, in

order to ensure that access to information, counselling and services qua family planning is

available to all women on equal terms, in parity with men.26

Under Article 12 (1) of the International Covenant on Economic, Social and Cultural Rights,

196627, Member States have agreed to recognise the right of everyone to the enjoyment of the

highest attainable standard of physical and mental health. Article 12 (2) of the Protocol

provides that the steps to achieve this right, in particular in regards to, the right to

reproductive health, shall include those stated in, Article 12 (2) (a), that is, the provision for

the reduction of the still-birth rate and of infant mortality and for the healthy development of

the child; and Article 12 (2) (d), that is, the creation of conditions, which will assure to all

medical service and medical attention in the event of sickness.

The Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, by

virtue of Article 12 (Right to Marry) holds that, “Men and women of marriageable age have

the right to marry and to found a family, according to the national laws governing the

exercise of this right”.28

The 1994 Cairo Programme of Action, categorically states, in regards to the right to

procreate, as follows: “Reproductive rights embrace certain human rights that are already

recognised in national laws, international human rights documents and other relevant United

Nations consensus documents. These rights rest on the recognition of the basic right of all

couples and individuals to decide freely and responsibly the number, spacing and timing of

their children and to have the information and means to do so, and the right to attain the

highest standard of sexual and reproductive health. It also includes the right to all to make

decision concerning reproduction free of discrimination, coercion and violence as expressed

in human rights documents. In the exercise of this right, they should take into account the

needs of their living and future children and their responsibilities towards the community.”

26 See: The Convention on the Elimination of All Forms of Discrimination against Women, 1979,

http://www.ohchr.org/Documents/ProfessionalInterest/cedaw.pdf, Visited on: 18-07-2015 27 See: The International Covenant on Economic, Social and Cultural Rights,

http://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf, Visited on: 25-06-2015 28 See: The Convention for the Protection of Human Rights and Fundamental Freedoms,

http://conventions.coe.int/treaty/en/Treaties/Html/005.htm, Visited on: 23-06-2015

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Article 17 of the Beijing Conference of 1995 explicitly states that, all women have the right

to control all aspects of their health, particularly ‘fertility’, as it is an aspect which is very

basic qua their empowerment.29

The Maternity Protection Convention, 200030, by virtue of Article 3 states that, Member

States are to adopt appropriate measures to ensure that pregnant (or breast-feeding) women

are not made to perform tasks which shall have detrimental effect qua their health or the

health of the child. By virtue of Article 4, the Convention states that, on production of

relevant documents (that is, medical certificate and other supporting documents), as

determined by the national law of the particular State, the women to whom the Convention

applies will be entitled to maternity leave of not less than 14 weeks.

The Convention on the Rights of Persons with Disabilities, 2006, directs all Member States to

provide all persons with disabilities, the right to enjoyment of the highest attainable standard

of health without discrimination. States are directed to provide all persons suffering with

disabilities, affordable yet high quality healthcare, particularly in areas concerning sexuality

and reproductive health.

Development albeit the reproductive rights framework, in the international sphere is

advancing the jurisprudential tenets qua these rights in the municipal (or domestic) sphere. As

for example, in the case of M.C.D. v. Female Workers (Muster Roll)31, the Supreme Court

of India, supplying due emphasis on Article 11 of the Convention on the Elimination of All

Forms of Discrimination against Women, 1979, held that, maternity benefit is applicable to

all casual workers and daily wage workers, as there is nothing in the Maternity Benefit Act,

1961 which entitles only regular women employees to the benefit of maternity leave and not

to those who are engaged on casual basis or on muster roll on daily wages.

Part III: Exploring the Dimensions: Indian Scenario and International Practice

According to Black’s Law Dictionary, ‘procreation’ means the generation of children, and

‘pregnancy’ means the condition resulting from the fertilized ovum, that is, the existence of

29 The Beijing Conference of 1995, http://www.un.org/womenwatch/daw/beijing/pdf/BDPfA%20E.pdf, Visited

on: 09-07-2015 30 See: The Maternity Protection Convention, 2000,

http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C183, Visited on:

24-07-2015 31 2000 (2) SCR 171: MANU/SC/0164/2000

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condition beginning at the moment of conception and terminating with delivery of the child.32

According to Dorland’s Illustrated Medical Dictionary, pregnancy is the condition of having

a developing embryo or foetus in the body, after union of an ovum and spermatozoon. In

women, duration of pregnancy from conception to delivery is about 266 days. Pregnancy is

marked by cessation of the menses; nausea on arising in the morning (morning sickness);

enlargement of breasts and pigmentation of the nipples; progressive enlargement of the

abdomen. The absolute signs of pregnancy are foetal movements, sounds of the foetal heart,

and demonstration of the foetus by x-ray or ultrasound.33

As per Section 3 (65) of the General Clauses Act, 1897, ‘reproducing’ means ‘producing

again’. According to Dorland’s Illustrated Medical Dictionary, reproduction is defined as

the production of offspring by organised bodies; the creation of a similar object or situation,

duplication, replication.34 Taking necessary clue from Section 312 of the Indian Penal Code,

1860, ‘abortion’ can be defined as, the delivery or expulsion of human foetus prematurely,

that is, before it is yet capable of sustaining life (that is, any period of gestation short of the

full term). According to P. Ramanatha Aiyar’s Concise Law Dictionary, ‘criminal abortion’

may be defined as, premeditated or intentional abortion procured, at any period of pregnancy,

by artificial means, and solely for the purpose of preventing the birth of living child, the same

not being necessary to save the mother’s life.35

The Medical Termination of Pregnancy Act, 1971, categorically holds that, women in India

have a right to medical termination of pregnancy (that is, abortion), if and when the

pregnancy is up to 12 weeks through the assistance of one-doctor, and in case the pregnancy

is up to 20 weeks through the assistance of two-doctors; if giving birth would cause unjust

physical or mental harm to the women or, the child if born would be born with severe

infirmities (or disabilities). It is worth mentioning that, the Pre-Conception and Pre-Natal

Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, prohibits the pre-natal sex-

determination tests of the foetus. This Act is in fact a legislative measure through which

unborn female child could be protected.36

32 See: The Black’s Law Dictionary, Sixth Edition (Centennial Edition, 1891-1991), p. 1179, 1207 33 See: Dorland’s Illustrated Medical Dictionary, 30th Edition (International Edition), p. 1500 34 Ibid at p. 1613 35 See: P. Ramanatha Aiyar’s Concise Law Dictionary, Lexis Nexis Publication, Fifth Edition, p.6 36 While dealing with violation qua the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition on

Sex Selection) Act, 1994, the Supreme Court of India in the case of Voluntary Health Association of Punjab v.

Union of India, (2013) 4 SCC 1: (2013) 2 SCC (Cri) 287, observed that female foeticide has its roots in the

social thinking which is fundamentally based on certain erroneous notions, ego-centric traditions, pervert

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Abortion in India is an offence, except for done in good faith and for therapeutic purposes. As

per Section 312 of the Indian Penal Code, 1860, “Whoever voluntarily causes a woman with

child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of

saving the life of the woman, be punished with imprisonment of either description for a term

which may extend to three years, or with fine, or with both; and, if the woman be quick with

child, shall be punished with imprisonment of either description for a term which may extend

to seven years, and shall also be liable to fine.” A woman who causes, herself to miscarry is

well within the domain of Section 312 of the Indian Penal Code, 1860. By treating the act of

procuring an abortion (except in good faith) as an offence, an implicit protection has been

provided to the foetal right. This can be said in a qualified sense by reverting to Section 20 of

the Hindu Succession Act, 1956 which confers a right to succeed to the father’s estate upon a

child who was in the mother’s womb when the father died intestate.

Appreciation of penal laws contemplating punishment for offences qua abortion and

miscarriage in Indian context requires a threadbare understanding of Sections 313, 314, 315

and 316 of the Indian Penal Code, 1860. As per Section 313 of the Indian Penal Code, 1860,

causing miscarriage without woman’s consent is a cognizable, non-bailable offence, triable

by the Court of Session, calling for punishment albeit imprisonment for life, or imprisonment

for 10 years and fine. Section 314 of the Indian Penal Code, 1860 states that, death caused by

an act done with the intent to cause miscarriage, is a cognizable, non-bailable offence, which

is punishable with imprisonment for 10 years and fine.37 Section 315 of the Indian Penal

Code, 1860, states that, an act done with the intent to prevent a child being born alive, or to

cause it to die after its birth, is cognizable, non-bailable offence, punishable with

imprisonment for 10 years, or fine, or both. Lastly, Section 316 of the Indian Penal Code,

1860 states that, causing death of a quick unborn child by an act amounting to culpable-

homicide is a cognizable, non-bailable offence, punishable with imprisonment for 10 years,

or fine.

The United States Supreme Court in the case of, Skinner v. Oklahoma38 characterised the

right to reproduce as one of the basic civil rights of man. Incorporating the dictum of Skinner,

the High Court of Andhra Pradesh in the case of B.K. Parthasarathi v. Government of

perception of societal norms, and obsession with ideas which are totally individualistic sans the collective good.

All involved in female foeticide deliberately forget to realise that when foetus of a girl child is destroyed, a

woman of future is crucified. 37 If the act done, as so enumerated in Section 314 of the Indian Penal Code, 1860, is without the consent of the

women, then the punishment is imprisonment for life or, imprisonment for 10 years and fine. 38 316 U.S. 535

11

Andhra Pradesh39 held that, the right to make a decision about reproduction is essentially a

very personal decision either on the part of the man or woman; necessarily, such a right

includes the right not to reproduce.

In the case of Alka Sharma v. Abhinesh Chandra Sharma40, it was held that, ‘procreation’

means ‘to produce an offspring’ and ‘procreate’ means ‘the capacity of a spouse to give birth

as also rear up and bring up children’. In the case of Bandhua Mukti Morcha v. Union of

India41, the Supreme Court of India, relying on Francis Coralie v. Union Territory of

Delhi42, held that, Article 21 has within its sweep, the right of women to maternity relief.

Procreation and Right to health: Right to health in India has been recognised as a

fundamental right. The term ‘reproductive health of women’ lies well within the compass of

the term ‘health’. In the case of, Kesavananda Bharti v. State of Kerala43, the Supreme

Court of India held that, right to life implies right to a basic “healthy life” as provided under

the Constitution of India, 1950. Further, in the case of Francis Coralie v. Union of India44,

the Supreme Court of India extended the right to basic necessities such as adequate nutrition,

shelter, free movement and expressing oneself, as part of the fundamental rights. In another

case, Consumer Research Centre v. Union of India45, the Apex Court required that

compulsory health insurance should be provided to every worker in order to implement the

worker’s fundamental right to health. In yet another case, Kirloskar Brothers Ltd. v.

Employee’s State Insurance Corporation46, the Apex Court held that, the right to health is a

fundamental right of every worker (male as well as female), and the same should be extended

to both, the State as well as the Private employees. Lastly, pushing the scope of ‘right to

health’ a bit further, in the case of Pt. Parmanand Katara v. Union of India47, the Supreme

Court of India held that, a doctor at a government hospital has the duty under Article 21 of

the Constitution of India, 1950 to provide medical care, regardless of whether the person is

innocent or criminally liable under the penal statute.

39 Para 15, MANU/AP/0043/2000 40 AIR 1991 MP 205, 212 41 (1984) 3 SCC 161: AIR 1984 SC 802 42 (1981) 1 SCC 608: AIR 1981 SC 746 43 (1973) 4 SCC 225 44 AIR 1978 SC 597 45 (1995) 3 SCC 42 46 (1996) 2 SCC 682 47 AIR 1989 SC 2039

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Procreation and Sterilization: In order to regulate sterilization procedures in India, the

Supreme Court of India, in the case of Ramakant Rai & Ors v. Union of India & Ors48, gave

the Government of India the following directions: (a) Introduce a system of having an

approved panel of doctors which shall be entitled (and authorised) to carry out sterilization

procedures in the State. The panel should be prepared State-wise, District-wise and Region-

wise; (b) The State Government shall prepare and circulate a check-list which every doctor

will be required to fill before carrying out sterilization procedure qua a proposed patient. The

check-list is to contain the following items: age of the patient, status of health of the patient,

and the number of children the proposed patient has. Doctors shall be prohibited from

carrying out sterilization without filling the check-list; (c) Each State shall establish a Quality

Assurance Committee, consisting of Director of Health Services, the Health Secretary and the

Chief Medical Officer, for the purpose of not only ensuring that guidelines are followed in

respect of pre-operative measures and operational facilities but also post-operative follow

ups. The Quality Assurance Committee shall be duty-bound to publish reports of the number

of persons sterilized, as well as the number of deaths / complications arising out of the

sterilization; (d) Each State shall maintain, overall statistics qua the number of sterilizations

carried out, particulars of procedures followed (as there are different methods of

sterilization), age of the patients sterilized, number of children the person sterilized has,

number of deaths post-sterilization due to surgical complications, and number of persons

incapacitated by reason of sterilization programmes; (e) State shall bring to effect insurance

policies qua persons sterilized, to ensure (and secure) safety of health and general well-being

of such persons; Union of India, to this effect shall prescribe a standard format. Despite the

directions rendered qua sterilization, situation in India continues to be dismal, for India is still

ill-equipped technologically so far as measures concerning sterilization are concerned.

Right to Procreate vide the Surrogacy Route: Surrogacy is a well-known method of

reproduction, whereby a woman agrees to become pregnant for the purposes of gestating and

giving birth to a child she will not raise but handover to the contracted party. Intending

parents may arrange a surrogate pregnancy, for because the woman who intends to parent, is

either unwilling to undergo pregnancy or is infertile. An intending parent may be a single

male or female individual. Surrogacy arrangement can be in regards to, the fulfilling of the

48 Writ Petition (Civil) No. 209/2003, Date: 01.03.2005; Supreme Court of India, Coram: Honourable Mrs.

Justice Ruma Pal, Honourable Mr. Justice Arijit Pasayat & Honourable Mr. Justice C.K. Thakker

13

parental needs of a same-sex-couple.49 Gestational surrogacy is a pregnancy in which one

woman (the genetic mother) provides the egg, which is fertilized, and another woman (the

surrogate mother) carries the foetus and gives birth to the child. Traditional surrogacy is a

pregnancy in which a woman provides her own egg, which is fertilized by artificial

insemination, and thereafter she carries the foetus and gives birth, to a child for another

person. In Gestational surrogacy, in total sense of the term, an embryo is created by the

process of IVF (In-Vitro Fertilization). Traditional surrogacy can be called as partial or

genetically contracted motherhood, much because, the surrogate mother is impregnated with

the sperm of the intended father making her both the genetic and the gestational mother; the

child shares make-up of the commissioning father and the surrogate mother.50 Surrogacy is

commercial or altruistic, depends on whether or not, the surrogate receives monetary

consideration for her pregnancy (or for the relinquishment of the child). Surrogacy is legal in

India, for there is absence of laws in India that prohibit surrogacy. Due to moral

considerations attached qua the surrogacy route of procreation, the National Guidelines for

Accreditation, Supervision & Regulation of ART Clinics was evolved in 2005, by the ICMR

(Indian Council of Medical Research) and NAMS (National Academy of Medical Sciences).

In pursuance of the 2005 Guidelines, a surrogate mother is not considered as the legal

mother; the birth certificate is made in the name of the genetic mother.

Procreation, Surrogacy, Child Care Leave & Maternity Benefits: In the case of

Kalaiselvi v. Chennai Port Trust51, it was held that, a woman employee is entitled to avail

‘child care leave’ even in case where she gets the child through the surrogacy route. K.

Chandru, J., categorically stated that, though the commissioning mother did not undergo any

pre-natal phase qua pregnancy, however, from the first day itself, post the delivery, the

commissioning mother is required to be treated as the ‘mother’ of the new born, and thus

without deliberating over the issue of genetic mother vis-à-vis gestational mother, the

commissioning mother should be made entitled to all benefits accruing to a woman employee

post the delivery of the child. Further, in the case of P. Geetha v. The Kerala Livestock

Development Board Limited52, D.S. Naidu, J. dealt with the issue of, whether a ‘biological

mother’ is entitled to maternity leave, in a case where she has obtained the child vide the

49 See: Baby Manji Yamada v. Union of India, JT 2008 (11) SC 150 50 See: Law Commission of India (Report No. 228), Need for legislation to regulate assisted reproductive

technology clinics as well as rights and obligations of parties to a surrogacy, August 2009,

http://lawcommissionofindia.nic.in/reports/report228.pdf, Visited on: 03-07-2015 51 2013 SCC Online Mad 811 52 2015 SCC Online Ker 71

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surrogacy route. After deliberating over the issue, the Kerala High Court held that, a mother

who obtained the baby through the surrogacy route is entitled to all benefits that an employee

could have, post the delivery of the child. All benefits meant, all child specific statutory

benefits. In another case, Rama Pandey v. Union of India53, the Delhi High Court (through

Rajiv Shakdher, J.) ruled that, confining the term ‘maternity’ only to gestational mother (that

is, the one who biologically conceives the child) would be, turning a blind eye qua the

advancement in science and technology. Deliberating over the issue qua maternity benefits, to

be given to a commissioning mother, Rajiv Shakdher, J. concluded that, the genetic mother is

entitled to both, pre-natal and post-natal maternity leave, despite the fact that she did not

carry the child albeit in her womb. Maternity is established qua a commissioning mother, as

soon as, the child is conceived by the gestational mother; entitlement of the commissioning

mother both during the pre-natal and post-natal stage is that of a ‘legal mother’. In case the

commissioning mother and the surrogate are both working (that is, are government

employees), it is for the competent authority to decide, as to how the maternity leave is to be

divided amongst the genetic and the gestational mother; the competent authority is to do so

vide a reasoned order.

Procreation and Right to Privacy: The interface between the ‘right to procreate’ and the

‘right to privacy’ has long been a topic of contest in the United States. Before taking note of

the developing trends in India, it will be insightful to gaze over the U.S. jurisdiction.

1. In the case of Griswold v. Connecticut54, the constitutionality of a statute which

sought to restrict the right of married persons to use contraceptive devices fell for the

consideration of the court. The majority of the United States Supreme Court held that

this statute impermissibly restricted (or limited) the right of privacy of the married

persons. Justice Douglas, who delivered the majority opinion, traced this right of

privacy to several guarantees of the Bill of Rights. The court candidly stated that, the

right to privacy in marriage is older than the Bill of Rights, the State political parties

and even the State education (school) system; marriage is coming together for better

or for worse, hopefully enduring, and intimate to the degree of being sacred, for it is

an association for a noble purpose. The court held that the impugned statute regulated

a personal marital relationship without an identifiable and legitimate relationship and

53 W.P. (C) No. 844/ 2014, http://lobis.nic.in/dhc/RAS/judgement/17-07-2015/RAS17072015CW8442014.pdf,

Visited on: 18-07-2015 54 381 U.S. 479 (1965)

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would expose the married couple to an inquiry into the intimate details of their sacred

association.

2. In the case of Eisenstadt v. Baird55, the United States Supreme Court invalidated a

statute which prohibited the distribution of contraceptives to un-married persons on

the ground that it violated the equal protection clause as the court found no rationale

or legitimate distinction qua the use of contraceptives by married as against (or

distinguished from) the un-married persons. Hence, this case made clear that, right to

privacy in the area of procreation was not confined to the married couples only.

3. In the case of Roe v. Wade56, the United States Supreme Court, held that, the right to

have an abortion was a part of the fundamental constitutional right to privacy of the

woman and such a right could be interfered with by the State only to promote a

compelling interest of the State. The protection of the health of the women was held

to be of a compelling interest to the State. Thus, the court held threadbare that, the

right to privacy is broad enough to encompass a woman’s decision whether or not to

terminate her pregnancy.

4. In the case of Carey v. Population Services International57, the United States

Supreme Court held that, while the outer limits of the right to personal privacy have

not been marked by the court, it is clear that among the decisions that an individual

may make without unjustified government interference are personal decisions relating

to marriage; procreation; contraception; family relationships; and child rearing and

education.

5. The State of Missouri enacted a statute which in its preamble stated as follows: (a) life

of each human being begins at conception; and (b) unborn children have protectable

interests in life, health and well-being. The statute was alleged to be unconstitutional,

in the case of Webster v. Reproductive Health Services58, for being contrary to the

United States Supreme Court dictum in the case of Roe v. Wade. The United States

Supreme Court upheld the constitutional validity of the statute stating that, the

restrictions imposed on the use of State funds, facilities and employees in performing,

assisting with, or counselling on abortions, were just. Reversing the Eighth Circuit

decision, the Supreme Court allowed States to legislate in areas that were previously

thought to be forbidden under Roe v. Wade ruling.

55 405 U.S. 38 (1972) 56 410 U.S. 113 (1973) 57 431 U.S. 678 (1977) 58 492 U.S. 490 (1989)

16

6. In the case of Planned Parenthood v. Casey59, the constitutionality of the

Pennsylvania Abortion Control Act, 1982 was challenged, and the United States

Supreme Court was called upon to adjudicate upon the vires of the Act. Five

provisions of the 1982 Act were challenged, for these were alleged to be

unconstitutional. These provisions were: (a) the informed consent rule, which required

doctors to inform women about detriments to health in abortion procedures; (b) the

spousal notice rule, which required women to give prior notice to their husbands

before abortion; (c) the parental notification and consent rule, which required minors

to receive consent from parent or guardian prior to an abortion; (d) rule concerning

24-hours hold before obtaining an abortion; and (e) rule concerning imposition of

certain reporting mandates on facilities providing abortion services. The United States

Supreme Court upheld the constitutionality of the informed consent rule; the parental

notification and consent rule; and the rule concerning 24 hours waiting period.

Holding the spousal notice rule as constitutionally bad, the court held that this rule

created undue burden on married women seeking an abortion, and thus, it was ultra

vires the fourteenth amendment to the United States Constitution.

7. In the case of Stenberg v. Carhart60, the United States Supreme Court was to

adjudicate upon the constitutionality of a Nebraska statute which made the performing

of ‘partial birth abortion’61 illegal, without giving sufficient regards to the health and

safety of a pregnant woman. The court observed that, laws banning partial birth

abortion are unconstitutional, if they lack necessary exceptions qua the heath, and

safety of woman, or if they cannot be construed reasonably to apply only to partial

birth abortions (intact dilation and extraction) procedures and not other abortion

methods. The court according struck down the statute, holding it unconstitutional, that

is in violation of the “due process clause” of the United States Constitution, as was

interpreted by the Honourable Court in Planned Parenthood v. Casey and Roe v.

Wade.

8. In the case of Gonzales v. Carhart62, the United States Supreme Court was to

adjudicate upon the constitutionality of the Partial-Birth Abortion Ban Act, 2003. The

court upheld the constitutionality of the Act by distinguishing the present case with

59 505 U.S. 833 (1992) 60 530 U.S. 914 (2000) 61 Partial Birth Abortion is defined as any abortion in which the physician partially delivers vaginally a living

unborn child before killing the unborn child and completing the delivery. 62 550 U.S. 124 (2007)

17

the case of Sternberg v. Carthart, in which the court dealt with related issues. The

main claim against the statute was that, it lacked an exception for the health of the

women. The court held that, the respondents failed to demonstrate that the Act was

void for vagueness, or that it imposed an undue burden on women’s right to abortion

based on its over-breadth or lack of health exception. Upholding the vires of the Act,

the court reversed the decision of the Court of Appeals, Eighth and Ninth Circuits

respectively.

In India too, the approach qua the interface between the ‘right to procreate’ and the ‘right

privacy’ has been comprehensive. In the case of Govind v. State of M.P.63, the Honourable

Supreme Court of India authoritatively held that, privacy primarily concerns the individual. It

therefore relates to and overlaps with the concept of liberty. Any right to privacy must

encompass and protect intimacies of the home, the family, marriage, motherhood, procreation

and child rearing. In another case, R. Raj Gopal v. State of Tamil Nadu64, explaining the

‘right to privacy’, the Apex Court held that, the right to privacy has within its sphere the right

of an individual to be let alone and the right to safeguard the privacy of his own, his family,

marriage, procreation, motherhood, child bearing and education among other matters.65

Procreation and Right to Personal Liberty: To construe ‘personal liberty’ in the American

sense of the term, especially in areas of advancing jurisprudence, is stellar. In the case of

Cleveland Board of Education v. La Fleur66, the United States Supreme Court asserted that,

it was long recognised that freedom of personal choice in matters of marriage and family life

is one of the liberties protected by the ‘due process clause’ of the fourteenth amendment to

the United States Constitution.

In the case of Suchita Srivastava & Anr v. Chandigarh Administration67, the Supreme

Court of India, made the following important observation- “There is no doubt that a woman’s

right to make reproductive choices is also a dimension of “personal liberty” as understood

under Article 21 of the Constitution of India, 1950. It is important to recognise that

reproductive choices can be exercised to procreate as well as to abstain from procreating.

The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity

should be respected. This means that there should be no restriction whatsoever on the

63 (1975) 2 SCC 148 64 (1994) 6 SCC 632 65 See: V.N. Shukla, Constitution of India, Tenth Edition, Eastern Book Company, p. 169-170 66 414 U.S. 632 (1974) 67 (2009) 9 SCC 1

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exercise of reproductive choices such as women’s right to refuse participation in sexual

activity or alternatively the insistence on use of contraceptive methods. Furthermore, women

are also free to choose birth control methods such as undergoing sterilisation procedures.

Taken to their logical conclusion, reproductive rights include a women’s entitlement to carry

a pregnancy to its full term, to give birth and to subsequently raise children. However, in the

case of pregnant women there is also a compelling State interest in protecting the life of the

prospective child. Therefore, the termination of a pregnancy is only permitted when the

conditions specified in the applicable statute have been fulfilled. Hence, the provision of the

Medical Termination of Pregnancy Act, 1971 can also be viewed as reasonable restrictions

that have been placed on the exercise of reproductive choices.”

Procreation and Mental Retardation: The United Nations Convention on the Rights of

Persons with Disabilities68, by virtue of Article 23, states that, States party to the convention

shall take effective and appropriate steps to eliminate discrimination against persons with

disabilities in all matters relating to marriage, family, parenthood and relationships, on an

equal basis with others, to ensure that, their right to procreation, marriage and retention of

fertility are not impeded.

An intriguing proposition of law came before the United States Supreme Court, in the case of

Stump v. Sparkman69. In the year 1971, Judge Harold D. Stump gave grant to a mother's

petition to have a tubal ligation performed on her 15 years old daughter; the mother to seek

the grant alleged that her daughter was ‘mildly retarded’. The petition was given the grant,

the same day it was filed. The judge, it was averred, did not hold any hearing to receive

evidence on the subject matter in dispute (that is, whether or not such a grant should be or

could be given) or appoint any lawyer to protect the interests of the daughter. The daughter

was made to undergo the surgery on the pretext that the surgery is been performed to have

her appendix removed. Later, two years thereafter, the daughter having got married and

persistently failing to conceive, she and her husband realized that, she was sterilized way

back in 1971 itself. The daughter and her husband, thereafter, sued the judge and others

associated with the sterilization done in the 1971 operation, in Federal District Court. The

district court observed that the judge was immune from the suit. The Seventh Circuit Court of

Appeals, however, reversed the decision and the findings of the Federal District Court,

68 The United Nations Convention on the Rights of Persons with Disabilities,

http://www.un.org/disabilities/convention/conventionfull.shtml, Visited on: 26-06-2015 69 435 U.S. 349 (1978)

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thereby holding that, the judge is supposed to have lost his immunity because of his failure to

observe the "elementary principles of due process", for having ordered the sterilization.

Finally, in the year 1978, the U.S. Supreme Court, in a landmark decision of 5:3 majority,

reversed the decision of the Court of Appeals, holding that, a judge will not be deprived of

immunity because the action he took was in error, or was done maliciously, or was in excess

of his authority. He in fact, will be subject to liability only when, he accused of having acted

in the excess of, or, absence of the necessary jurisdiction. This case, lexicologists believe,

became the stepping stone qua the advancing of the theory of “best interests test” and

“substituted judgment test”, thereby limiting the scope and application of the eugenics theory.

Another interesting proposition of law came before the Supreme Court of Canada in the case

of E (Mrs.) v. Eve70. In this case, Mrs. E applied to the Supreme Court of Prince Edward

Island for permission to give consent to the sterilization of Eve, her adult daughter who was

mentally retarded and suffered from a condition making it extremely difficult to communicate

with others. Mrs. E feared that, Eve might innocently conceive, and this would consequently

force Mrs. E (who was widowed and approaching sixty years of age) to assume the

responsibility of the child born. Thus, an application was sought for: (a) Declaration that Eve

was mentally incompetent pursuant to the Mental Health Act; (b) Appointment of Mrs. E as

committee of Eve; and (c) Authorization for Eve’s undergoing tubal ligation.

The application for authorization to sterilize was denied, and an appeal to the Supreme Court

of Prince Edward Island, in banco, was launched. An order was then made appointing the

official trustee as guardian ad litem for Eve. The appeal was allowed. The court ordered that

Eve be made a ward of the court pursuant to the Medical Health Act solely to permit the

exercise of the ‘parens patriae’ jurisdiction to authorise sterilization, and that the method of

sterilization be determined by the court following further submissions. A hysterectomy was

later authorised. Eve’s guardian ad litem appealed. The appeal was allowed. The court made

the following observations:

a. Sterilization should never be authorized for non-therapeutic purposes under the

‘parens patriae’ jurisdiction. In the absence of the affected person’s consent, it can

never be safely determined that it is for the benefit of that person. The grave intrusion

on a person’s rights and the ensuing physical damage outweigh the highly

70 [1986] 2 SCR 388; See: Judgments of the Supreme Court of Canada, http://scc-csc.lexum.com/scc-csc/scc-

csc/en/item/170/index.do, Visited on: 22-06-2015

20

questionable advantages that can result from it. The court, therefore, lacks jurisdiction

in such a case.

b. The function of the court qua the protection of those unable to take care of themselves

must not be transformed so as to create a duty obliging the court, at the behest of a

third party, to make a choice between two alleged constitutional rights- that is to

procreate or not to procreate- simply because the individual is unable to make that

choice. There was no evidence to indicate that failure to perform the operation would

have any detrimental effect on Eve’s physical or mental health. Further, since the

‘parens patriae’ jurisdiction is confined to doing what is for the benefit and protection

of the disabled person, it cannot be used for Mrs. E’s benefit.

c. Cases involving applications for sterilization for therapeutic reasons may give rise to

the issues of the burden of proof required to warrant an order for sterilization and of

the precautions, judges should take with these applications in the interest of justice.

Since, barring emergency situations, a surgical procedure without consent constitutes

battery, the onus of proving the need for the procedure lies on those seeking to have it

performed. The burden of proof, though a civil one, must be commensurate with the

seriousness of the measure proposed. A court in conducting these procedures must

proceed with extreme caution and the mentally incompetent person must have

independent representation.

In critical appreciation of the above judgment (E (Mrs.) v. Eve), necessary mention requires

of the following judgment of the Supreme Court of India, Samira Kohli v. Dr. Prabha

Manchanda & Anr71. In this case, the following question came before the honourable court

for consideration: Whether informed consent of a patient is necessary for surgical procedure

involving removal of reproductive organs? If so what is the nature of such consent? (See:

Para 13 of the Judgment)

The court categorically stated thus:

(a) A doctor has to seek and secure the consent of the patient before commencing a

‘treatment’ (the term ‘treatment’ includes surgery also). The consent so obtained

should be real and valid, which means that, the patient should have the capacity and

competence to consent; his consent should be voluntary; and his consent should be on

the basis of adequate information concerning the nature of the treatment.

71 JT 2008 (1) SC 399

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(b) The ‘adequate information’ to be furnished by the doctor (or a member of his team)

who treats the patient, should enable the patient to make a balanced decision as to

whether or not, he should submit himself to the particular treatment. This means that

the doctor should disclose:

1. The nature and procedure of the treatment and its purpose, benefits and effect;

2. Alternatives, if any available;

3. An outline of substantial risks; and

4. Adverse consequences qua the refusing of the treatment.

(c) Consent given only for a diagnostic procedure, cannot be considered as consent for

therapeutic treatment.

(d) There can be common consent for diagnostic and operative procedures where they are

contemplated. There can also be a common consent for a particular surgical

procedure and an additional or further procedure that may become necessary during

the course of the surgery.

(e) The nature and extent of information to be furnished by the doctor to the patient

should depend upon the physical and mental condition of the patient, the nature of the

treatment, and the risks and consequences attached to the treatment.

In India, doctors are not required to explain, the remote or theoretical risks involved with the

treatment (or surgery), which may frighten (or confuse) the patient and thus, may result in

refusal of consent for the necessary treatment (or surgery). Focus is on the ‘balance’ that

should be achieved between the need for disclosing the necessary information, and

information deterring the patient from agreeing to a necessary treatment. India has

consciously preferred the ‘real consent’ concept evolved in Bolam v. Friern Hospital

Management Committee72 and Sidaway v. Bethlem Royal Hospital Governors & Ors73 in

preference to the ‘reasonably prudent patient test’ in Canterbury v. Spence74. Court

categorically observed that, it awaits the day when medical practitioners and private hospitals

in India will become less commercialised and there will be greater awareness qua the ‘rights

of patients’ generally, and thus India will be qualified enough for the ‘reasonably prudent

patient test’ as illustrated in Canterbury.

72 1957 (2) All ER 118 73 1985 (1) All ER 643 74 1972 (464) Federal Reporter 2d 772

22

In the case of Suchita Srivastava & Anr v. Chandigarh Administration75, the Supreme

Court authoritatively upheld the right to procreate, of persons with mild mental retardation.

The court observed that, there is a crying need to look beyond the social prejudices in order to

rationally decide whether an individual who is in a condition of mild mental retardation can

perform parental responsibilities. The court noted that, empirical studies conclusively

disprove the eugenics theory that, mental defects are likely to be passed on to the next

generation. The court directed that, best medical facilities should be made available to ensure

pre-natal and post-natal supervision and health care to individuals suffering from mental

retardation but, are willing to procreate. The basis for arriving at this decision was the

understanding that, a condition of ‘mental retardation’ or ‘developmental delay’ is gauged on

the basis of parameters such as the IQ (Intelligence Quotient) and MA (Mental Age) which in

fact, mostly relate to academic abilities. The court observed that, it is quite possible that a

person with a low IQ or MA may possess social and emotional capacities that will enable him

or her to be a good parent. Thus, importance lies in the evaluation of each case in a thorough

manner with due emphasis being given to the medical opinion rendered for concluding

whether or not, a mentally retarded person is capable of performing parental responsibilities.

India has taken an opposing position qua the eugenics theory, thus, forced sterilisation or

abortion of mentally retarded individuals, in India, is not only considered as anti-democratic

but also violative of Article 14 of the Constitution of India, 1950.

There is a crying need in India that reproductive rights of women be protected for the current

trend is not only dismal but also worrisome. It is estimated that, about 33 percent of all

women in India are malnourished, and 52 percent are anaemic; and nearly 21 percent of all

pregnancies in India are either unwanted or mistimed. Out of the total actual family planning

outlay of Rs. 397 crore (2013-2014 Budget), 85 percent was spent only on sterilising females.

It seems female sterilisation is the norm in India, and male sterilisation an exception.76

Sterilisation, in India, is a primary method of family planning and birth control, more-so-over

it is an intrinsic part of the National Family Planning Programme.

Issue of safe motherhood in India needs to be a comprehensive and dynamic concept with

stress given not exclusively to, physical and mental well-being of women, and family

75 Para: 50, 54, 59 and 60; (2009) 9 SCC 1 76 See: Poonam Muttreja, Honour Reproductive Rights of Women, The Tribune, 7 May 2015,

http://www.tribuneindia.com/news/comment/honour-reproductive-rights-of-women/77100.html, Visited on: 26-

06-2015

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planning, but also to their education, dignity and reproductive rights (discretion to procreate

or not to procreate).

Reproductive rights scenario in India continues to be dismal; the same is evident from the

findings of the Committee on the Rights of the Child (UN Doc. CRC/C/IND/CO/3-4, Para

33-34), the same is quoted threadbare as follows: “Due to long-standing traditions and

cultural influences that perpetuate boy preference and unequal status of girls, sex-selective

abortions, female infanticide and abandonment of girls remain widespread, resulting among

others in a high male-to-female sex ratio.” It was further observed: “India needs to ensure the

effective implementation of the Pre-Conception and Pre-Natal Diagnostic Techniques Act, so

as to prevent sex-selective abortions and strengthen regulatory mechanisms.”

Part IV: Can “Incarceration” take away the “Right to Procreate”?

In the case of Turner v. Safley77, it was held that, prisoners could not be denied the right to

marry; but nothing explicitly was said qua procreation vis-à-vis prison setting. The case of

Regina (Mellor) v. Secretary of State for the Home Department78 is an interesting read,

more so because it deals with the issue of, right of procreation vis-à-vis incarceration in a

manner that sets the cornerstones right for the development of future jurisprudential thoughts

qua the topic under consideration. The applicant in this case was convicted for murder in the

year 1995 and was thereby sentenced to life-imprisonment in furtherance of the offence

committed by him. The tariff element of his sentence was due to expire in the year 2006,

when he would be 35 years old, with his wife around 31 years old. The earliest he could

reasonably expect to be granted temporary release by the Parole Board was in the year 2004.

In the year 1997, the applicant, with his wife’s support, applied for permission for access to

artificial insemination facilities to start a family. It was the policy of the prison service to

grant such access only in exceptional circumstances. The Secretary of the State refused the

applicant’s request on the ground that there was no medical need for artificial insemination

and out of concern, for the long-term stability of the marriage. Later, applicant’s application

for judicial review of that decision was refused.

Dismissing the appeal preferred by the applicant, it was held that, one of the purposes of

imprisonment was to punish the criminal by depriving him of certain rights and pleasures

which he could only enjoy when at liberty, including the enjoyment of family life, the

77 482 U.S. 78, 95 (1987) 78 [2001] EWCA Civ. 472

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exercise of conjugal rights and the right to form a family; that the basic (fundamental) human

rights did not include the right of a prisoner to inseminate his wife by artificial means, and

thus, the prison authorities did not infringe the auspices of Article 12 of the Convention for

the Protection of Human Rights and Fundamental Freedoms, by refusing to provide a

prisoner with assistance to do so in the absence of exceptional circumstances; that, since any

interference with fundamental human rights had to be proportionate, exceptional

circumstances might require the normal consequences of imprisonment to yield; that public

perception was a legitimate element of penal policy to maintain public confidence in the

criminal justice system to which regard could be had when considering the right of prisoners

to beget children by artificial insemination; that the general policy of facilitating artificial

insemination by prisoners only in exceptional circumstances was therefore not irrational, and

that, accordingly there being no exceptional circumstances in the case of the applicant and his

wife, the refusal to permit artificial insemination was not in breach of the Convention,

unlawful or prejudiced.

Further in case of, William Gerber v. Rodney79, the United States Court of Appeal (Ninth

Circuit), considered the claim of an inmate in the California State Prison alleging that Mule

Creek State Prison was violating his constitutional right by disallowing him to provide his

wife with a sperm specimen, so that she may use it for artificial insemination. The convict

was 41-years old, serving sentence of over a hundred years; his wife was 44-years old; the

couple wished for a child vide artificial insemination. The Court of Appeals, with a majority

of 6:5, held that, (a) many aspects of marriage that make it a basic civil right, such as

cohabitation, sexual intercourse, and the bearing and rearing of children, are superseded by

the fact of confinement; and, (b) prisoners have no constitutional right while incarcerated to

‘contact visits’ or ‘conjugal visits’, this is keeping in view the nature and objective of a prison

system. The court held that, the conclusion that, the right to procreate is inconsistent with

incarceration is not dependent on science of artificial insemination, or on how easy or

difficult it is to accomplish, but on the premise that prison-setting does not provide for

facilitation of reproductive measures qua prisoners.

The Honourable Supreme Court of India categorically held in the case of Dr. Bhuvan Mohan

Patnaik & Ors v. State of Andhra Pradesh & Ors80 that, convicts cannot be denied the

protection of fundamental rights which they otherwise possess, merely because of their

79 291 F. 3d 617 (2002) 80 (1975) 3 SCC 185: MANU/SC/0038/1974

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conviction. A convict whom the law bids to live in confinement though stands denuded of

some of the fundamental rights, like that of, the right to move freely or the right to practice a

profession, but never the less, such convict continues to enjoy other constitutional guarantees

including the right to life and personal liberty (Article 21 of the Constitution of India). The

observations made in this case are far-fetched; impetus if drawn from the observations made

in this case may make us conclude that ‘right to procreate’ as an off-shoot of the ‘right to life’

survives despite an individual been incarcerated.

In the case of, Jasvir Singh and Ors v. State of Punjab and Ors81, the High Court of Punjab

and Haryana concerned itself with the answering of the following questions: (a) Whether the

right to procreation survives incarceration, and if so, whether such a right is traceable within

the Indian Constitution?; (b) Whether penological interest of the State permits creation of

facilities for the exercise of right to procreation during incarceration?; (c) Whether ‘right to

life’ and ‘personal liberty’ guaranteed under Article 21 of the Constitution include the right of

convicts (or jail inmates) to have conjugal visits or artificial insemination?; (d) If answer to

(c) is in the affirmative, whether all categories of convicts are entitled to such rights?

Answering the first question, that is, (a), in affirmative, the court observed that, right to

procreation survives incarceration. Such a right emanates from and squarely falls within the

ambit of Article 21 of the Constitution of India, 1950 read with the Universal Declaration of

Human Rights.

Answering the second question, that is, (b), the court observed that, the penological interest

of the State ought to permit the creation of facilities for the exercise of right to procreation

during incarceration (may be in a phased manner) as there is no inherent conflict between the

right to procreate and incarceration, however, the same is subject to reasonable restrictions,

social order and security concerns.

Answering the third question, that is, (c), the court held that, the ‘right to life’ and ‘personal

liberty’ guaranteed under Article 21 of the Constitution of India, 1950 includes the right of

convicts (or jail inmates) to have conjugal visits or artificial insemination (as an alternative).

However, the court emphasised that, the exercise of these rights are to be regulated by the

procedure established by law and the same is the sole prerogative of the State.

81 2015 Cri LJ 2282: 2015 (1) RCR (Criminal) 509

26

Answering the fourth question, that is, (d), the court stated that, ordinarily, all convicts

(unless classified) are entitled to the right to procreation while incarcerated. Such a right,

however, is to be regulated as per the policy established by the State, which may deny the

same to a class or category of convicts as the aforesaid right is not an absolute right and is

subject to the penological interests of the State.

Before we harp too much, or argue too sharply in favour of procreation rights qua prisoners,

we must appraise ourselves of the doctrine of ‘best interests of unborn child’ particularly

when we talk of procreation rights qua female prisoners, for prison-setting is the most

undesired form qua a child to open his eyes to this world writ-large. It is quite obvious that, a

new born child, born to an incarcerated mother shall most naturally accompany her to the jail.

In this context the Honourable Supreme Court, in the case of R.D. Upadhyay v. State of

Andhra Pradesh82, observed as follows (relying upon the report prepared by the Tata

Institute of Social Science): (a) Prison environment is not conducive to the normal growth

and development of children; (b) Many children are born in prison and never experience a

normal family life, sometimes till the age permitted to stay inside the jail, that is four to five

years; (c) Socialisation pattern gets severely affected due to their stay in prison. Their only

image of male authority is that of police and prison officials. They are unaware of the concept

of a home, as we know it. Boys may sometimes be found talking in the female gender, having

grown up only among women confined in the female ward. Unusual sights, like animals on

the road, seen on the way to court with the mother, are frightening; (d) Children get

transferred with their mothers from one prison to another, frequently, due to overcrowding,

unsettles them completely; and (e) Such children sometimes display violent and aggressive,

or alternatively, withdrawn behaviour in prison.

Part V: Conclusion

The 2014 Report of the Centre for Reproductive Rights brought to fore three important

observations83:

a. Roughly about 39% of the world’s total population live in countries with highly

restrictive abortion (procreation) laws (that is, laws which prohibit abortion

82 2006 (2) RCR (Criminal) 717: (2007) 15 SCC 337 83 See: Centre for Reproductive Rights, July 2014,

http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/WAM_GlobalView_2014%20EN_

0.pdf, Visited on: 03-07-2015

27

altogether, or allow procedures only to save a woman’s life, or to preserve her

physical and mental well-being).

b. About 47,000 women die each year, globally, due to unsafe abortions, according to

the World Health Organisation.

c. Only over 30 countries have liberalised their abortion-laws since the year 1994,

having expanded the grounds under which women can legally access abortion

services.

The recent case of Purvi Patel has brought to fore a great deal of debate, cardinally

questioning, is it right to criminalize abortion by defining it as ‘murder’ or ‘feticide’?

On 30th March, 2015, Purvi Patel, resident of Indiana State of United States of America was

sentenced to 20 years imprisonment for having an abortion, although there seems a good

reason to believe that what actually happened was a miscarriage and not an abortion. 33-

years-old, Purvi Patel lived in Granger, Indiana; she worked at Moe’s Southwest Grill (a

franchise restaurant, run by her brother and by her, since 2007). Patel developed sexual

intimacy with a co-worker who was already married. Post coitus with the male co-worker,

Purvi became pregnant, without actually realising for long that she is pregnant. When Purvi

gained awareness qua her pregnancy, she revealed the same to her friend Felicia Turbo and

no one else, other than her. To Purvi’s awareness, she was 3-week-pregnant in July 2013.

She, subsequently, started suffering cramping. One day, in the month of July, due to pain and

un-easiness, she came back home early, went to her bathroom and miscarried. She found the

foetus, which looked lifeless, she tried resuscitating it but her attempts failed. In the state of

shock, Purvi dumped the lifeless foetus in a dumpster. Realising that she was bleeding

heavily, she made it to the emergency room of the Saint Joseph Medical Centre. When Purvi

was examined, it was found that her umbilical cord was protruding from her vagina. Dr.

Kelly McGuire called the police on suspicion that Purvi Patel had given birth to a live foetus;

the foetus was abandoned by her. Purvi Patel was placed under police custody. Purvi’s

lawyers contested that she was never read her ‘Miranda Rights’ and she was force-questioned

by detectives while she was in the maternity ward. It came about as an admitted fact that

Purvi administered a miscarriage onto herself. Purvi thus was charged with child neglect and

was accused of killing her foetus. The case came up before the State of Indiana (St. Joseph

County) in the St. Joseph Superior Court, listed as, State of Indiana v. Purvi Patel84. The

84 Cause Number 71D08- 1307- FA- 000017 (Elizabeth C. Hurley, Judge; St. Joseph Superior Court)

28

court charged Purvi on two counts- first, neglect of a dependent (Class-A Felony); and

second, feticide (Class-B Felony). Court found Purvi guilty on both the counts, Class-A

Felony and Class-B Felony. The court adjudged as follows:

“The Court now sentences the Defendant to the care, charge and custody of the

Indiana Department of Corrections for a period of 30 years on Count I, and 6 years

on Count II, with Class 1 Credit for 4 days served prior to imposition of the sentence

herein. The sentences are concurrent to each other.

The sentence shall be served as follows: 20 years of the term shall be an executed

sentence in the Department of Corrections. The execution of the remaining 10 years

shall be suspended. The defendant shall be placed on probation for a period of 5

years following release from the Department of Corrections.

The Court recites the conditions of probation, which the Defendant acknowledges

understanding and agrees to abide by.

The Defendant is assessed court cost and a $500 fine. The Defendant is to provide a

DNA sample.

Following advertisement of C.R. 11 rights, the Defendant advises the Court she

wishes to appeal the conviction. The Defendant shall hire private counsel for

purposes of pursuing the Defendant’s right to appeal.”

This case, in the opinion of the author, is a bad precedent.85 The argument is two-fold.

Firstly, the reproductive rights of a woman, is an extension of the basic human right to life

and personal liberty. Thus, a woman should be given adequate discretion qua the decisions

concerning reproduction, abortion, pre-marital coitus, procreation without getting married

and medical self-determination. Purvi miscarried due to the social-stigma that was attached

with the pregnancy, as she was procreating before getting married. Thus, to charge Purvi for

‘feticide’ is uncalled for; much because lexically speaking, ‘feticide’ means, “intentional

destruction of the foetus in the womb or any untimely delivery brought about with the intent

to cause the death of the foetus”86. Every case, least requires, to be inspected and introspected

in totality, that is, in the background of the facts and circumstances that resulted in the

85 This case is a perfect example, calling for the application of the legal maxim: festinatio justitiae est noverca

infortunii, that is, ‘hasty justice is the step-mother of misfortune’. 86 See: P. Ramanatha Aiyar’s Concise Law Dictionary, Lexis Nexis Publication, Fifth Edition, p. 497;

Butterworth’s Medico-Legal Encyclopaedia

29

culmination of the event. In the present case, Purvi’s intention was to safeguard herself from

the social-stigma that followed the pregnancy, her intention was not to commit feticide;

feticide was the result of the actions that followed in furtherance of safeguarding herself from

the social-stigma that pre-marriage pregnancy carried. Secondly, Purvi was investigated

during the time she was still in the maternity ward. She was neither being made aware of, nor

was she read her Miranda Rights87 (or Miranda Warnings). The manner in which the case was

investigated and there-after the decision was reached, speaks much about the veracity of the

judgment delivered in this case.

In contra-distinction to the Purvi Patel case, is the Lakshmi Dhikta case. In Lakshmi Dhikta

v. Nepal88, the principal question that came for adjudication before the Supreme Court of

Nepal was this: ‘Is abortion a woman’s right?’

The facts of the case in brief are as follows: Lakshmi Dhikta (a mother of five children) was

forced to give birth to the sixth child, only for the reason that she was not able to pay the sum

of money required (Nepalese Rupees 1130, that is, approximately $20) for administration of a

legal abortion at a Government hospital in Nepal, owing to her poor financial condition. The

question for adjudication that came before the Supreme Court of Nepal was this: Is or is not,

a legal abortion, a basic human right of every woman?

Before coming to the conclusion, the court made the following observations:

1. Neither does science nor the law recognises the existence of a human being, until

born. The Constitution of Nepal, does not, any-where speaks of the rights qua a child

yet not born. In the case of Roe v. Wade89, the United States Supreme Court observed

that the court cannot recognise the ‘foetus’, as a ‘human life’. The case of Christian

Lawyers Association of South Africa and Ors v. Minister of Health and Ors90,

involved a legal challenge to the Choice on Termination of Pregnancy Act, claiming

that it violated the constitutional guarantee of the right to life of all persons. The

87 Miranda Rights: The rights (as the right to remain silent, to have an attorney present, and to have an attorney

appointed if indigent) of which an arresting officer must advice the person being arrested. A reading of the

Miranda Rights usually includes a warning that anything said could be used as evidence. No statements made by

an arrested person or evidence obtained there-from may be introduced at trial unless the person was advised of

or validly waived these rights. A fresh reading of the Miranda Rights may be required by the passage of time

after the initial reading, as for example if a previously silent person begins to speak or police interrogate a

person more than once. See: Miranda v. Arizona, 384 U.S. 436 (1966); P. Ramanatha Aiyar’s Concise Law

Dictionary, Lexis Nexis Publication, Fifth Edition, p. 817 88 Writ Petition Number: WO- 0757, 2067 (2007), Supreme Court of Nepal 89 410 U.S. 113 (1973) 90 1998 (11) BCLR 1434 (T): 1998 (4) SA 1113 (T)

30

South African Constitutional Court held that, the foetus cannot be treated as an

individual person.

2. A foetus assumes the status of a ‘child’ only when it is born alive, after being in the

womb of the gestational mother for a certain period of time or, after reaching a certain

stage of development within the womb. If an infant is born dead after completing

gestation or, if it suffers demise during the process of being born, it cannot be

considered a ‘human life’. Life is attained when there is live-birth from the womb of a

mother, anything else to the contrary, the entity remains a foetus. Even in situations

where the foetus is capable of life outside the womb of the gestational mother, if it

suffers demise, in the process of being born, it is not to be considered a human life.

3. Because the development of the foetus is dependent upon the health and fitness of the

mother, it owes its existence to the mother; hence, the interests qua the foetus can

never supersede the interests qua the mother. Foetus is to be seen as the extension of

the body of the pregnant mother, and not as a separate entity to itself.

4. Where there is a risk to the life of the mother; or where the foetus suffers from an

impairment of the kind that takes away the possibility of its survival upon its own-

self; or where the pregnancy results from a rape; or where the pregnancy occurs while

infected with HIV; abortion is legally permissible. Apart from these cases, abortion

should be made legally permissible, if it takes place in the first three-months or twelve

weeks, on request.91

5. If reproductive rights of women are not protected, then they may be forced to become

pregnant and as a consequence, continue to hold unwanted pregnancies, in which case

instead of being respected as right holders, they will be forced to bear the

responsibility qua human reproduction, there by transforming them into mere

instruments for that purpose. No doubt, to become pregnant is noble; but forced

pregnancy is worst of all tyrannies. Every woman is the sole master of her body.

6. In Nepal (as also in many other countries) women can obtain safe-legal-abortion

within the first three months or twelve weeks as provided in Section 28(b) of the

National Code of Nepal (Muluki Ain). Article 20 of the Constitution of Nepal provides

as follows: (1) A woman must not be discriminated against in any way on the ground

that she is a woman; (2) Every woman shall have the right to reproductive health and

rights relating to reproduction; (3) No woman shall be subjected to physical, mental or

91 In Nepal, as in many other countries, a woman can obtain a safe and legal abortion within the first three-

months or twelve weeks as provided in Section 28 (b) of the National Code.

31

any other form of violence and such acts shall be punishable by law; and (4) Sons and

daughters shall have equal rights to ancestral property.

Thus, the court held as follows: (a) Government must guarantee access to safe and affordable

abortion services; (b) Right to abortion is an essential component of reproductive rights

framework; (c) Forced pregnancy violates fundamental human rights of women; and (d)

Foetus does not have a legal status of ‘human life’.

Procreation rights still have to cover a long distance, for awareness qua them is still abysmal.

A host of issues need to be dealt with, and a lot of questions need to be answered, primary

among them, is the question of, ‘how trans-genders should be equipped with these rights’?

Many countries still do not recognise these rights qua trans-genders despite the international

recognition given to them albeit the Yogyakarta Principles92. Principle 24 of the Yogyakarta

Principle deals with the right to found a family.93 This principle states that, all States should

take necessary legislative, administrative and other measures to ensure the right to found a

family, including through access to adoption or assisted procreation (including donor

insemination), without discrimination on the basis of sexual orientation or gender identity.

The Supreme Court of India lately held, in the case of National Legal Services Authority v.

Union of India94, that non-recognition albeit gender-identity qua trans-genders is violative of

Article 14 and Article 21 of the Constitution of India. This decision, trans-gender-

reproductive-rights-activists state, will lay down the foundation for the realisation of

reproductive rights qua trans-genders.

92 In 2006, in response to the well documented patterns of abuse qua trans-genders, a distinguished group of

international human rights experts met in Yogyakarta (Indonesia) to outline a set of international principles

relating to “sexual orientation” and “gender-identity”. The result was the Yogyakarta Principles, which formed,

a universal guide to human rights which affirm the binding international legal standards with which all States

need to comply. 93 See: The Yogyakarta Principles, http://www.yogyakartaprinciples.org/principles_en.pdf; Visited on: 24-07-

2015; Principle 24: Everyone has the right to found a family, regardless of sexual orientation or gender identity.

Families exist in diverse forms. No family may be subjected to discrimination on the basis of sexual orientation

or gender identity of any of its members. 94 See: W.P. (C) No. 400/ 2012, http://supremecourtofindia.nic.in/outtoday/wc40012.pdf, Visited on: 24-07-

2015

32

Bibliography:

Statutes:

1. The Indian Penal Code, 1860

2. The Indian Evidence Act, 1872

3. The General Clauses Act, 1897

4. The Racial Integrity Act, 1924

5. The Constitution of India, 1950

6. The Hindu Succession Act, 1956

7. The Maternity Benefit Act, 1961

8. The Medical Termination of Pregnancy Act, 1971

9. The Pennsylvania Abortion Control Act, 1982

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

Selection) Act, 1994

11. The Partial-Birth Abortion Ban Act, 2003

12. The National Code of Nepal (Muluki Ain)

International Instruments, Conventions & Conferences:

1. The Universal Declaration of Human Rights, 1948

2. The Convention for the Protection of Human Rights and Fundamental Freedoms,

1950

3. The International Covenant on Economic, Social and Cultural Rights, 1966

4. The Convention on the Elimination of All Forms of Discrimination against Women,

1979

5. The Cairo Programme of Action, 1994

6. The Beijing Conference, 1995

7. The Maternity Protection Convention, 2000

8. The Convention on the Rights of Persons with Disabilities, 2006

9. The Yogyakarta Principles, 2006

10. The Centre for Reproductive Rights Report, 2014

11. The Committee on the Rights of the Child (UN Doc. CRC/C/IND/CO/3-4, Para 33-

34)

Books, Journals and Articles:

1. George Dennis O’ Brien, The Church and Abortion: A Catholic Dissent, Chapter 2:

Abortion and Law, Rowman & Littlefield Publishers, 2010 edition, p.29-30

2. Josephine Steiner & Lorna Woods, EU Law, Chapter 6: General Principles of Law,

Oxford University Press, 10th Edition, p. 136

3. The Black’s Law Dictionary, Sixth Edition (Centennial Edition, 1891-1991), p. 1179,

1207

4. Dorland’s Illustrated Medical Dictionary, 30th Edition (International Edition), p. 1500

5. P. Ramanatha Aiyar’s Concise Law Dictionary, Lexis Nexis Publication, Fifth

Edition, p.6

6. V.N. Shukla, Constitution of India, Tenth Edition, Eastern Book Company, p. 169-

170

33

Miscellaneous:

1. K.L. v. Peru, International Covenant on Civil and Political Rights,

http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/KL%20H

RC%20final%20decision.pdf, Visited on: 24-06-2015

2. L.C. v. Peru,

http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/CEDAW-

C-50-D-22-2009%20English%20(clean%20copy).pdf, Visited on: 04-07-2015

3. The Universal Declaration of Human Rights, http://www.un.org/en/documents/udhr/,

Visited on: 20-06-2015

4. The Convention on the Elimination of All Forms of Discrimination against Women,

1979, http://www.ohchr.org/Documents/ProfessionalInterest/cedaw.pdf, Visited on:

18-07-2015

5. The International Covenant on Economic, Social and Cultural Rights,

http://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf, Visited on: 25-06-

2015

6. The Convention for the Protection of Human Rights and Fundamental Freedoms,

http://conventions.coe.int/treaty/en/Treaties/Html/005.htm, Visited on: 23-06-2015

7. The Beijing Conference of 1995,

http://www.un.org/womenwatch/daw/beijing/pdf/BDPfA%20E.pdf, Visited on: 09-

07-2015

8. Law Commission of India (Report No. 228), Need for legislation to regulate assisted

reproductive technology clinics as well as rights and obligations of parties to a

surrogacy, August 2009, http://lawcommissionofindia.nic.in/reports/report228.pdf,

Visited on: 03-07-2015

9. W.P. (C) No. 844/ 2014, http://lobis.nic.in/dhc/RAS/judgement/17-07-

2015/RAS17072015CW8442014.pdf, Visited on: 18-07-2015

10. The United Nations Convention on the Rights of Persons with Disabilities,

http://www.un.org/disabilities/convention/conventionfull.shtml, Visited on: 26-06-

2015

11. Judgments of the Supreme Court of Canada, http://scc-csc.lexum.com/scc-csc/scc-

csc/en/item/170/index.do, Visited on: 22-06-2015

12. Poonam Muttreja, Honour Reproductive Rights of Women, The Tribune, 7 May 2015,

http://www.tribuneindia.com/news/comment/honour-reproductive-rights-of-

women/77100.html, Visited on: 26-06-2015

13. Centre for Reproductive Rights, July 2014,

http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/WAM_Gl

obalView_2014%20EN_0.pdf, Visited on: 03-07-2015

14. The Maternity Protection Convention, 2000,

http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO

_CODE:C183, Visited on: 24-07-2015

15. The Yogyakarta Principles, http://www.yogyakartaprinciples.org/principles_en.pdf;

Visited on: 24-07-2015

16. W.P. (C) No. 400/ 2012, http://supremecourtofindia.nic.in/outtoday/wc40012.pdf,

Visited on: 24-07-2015