by Ritika Sharma, University Institute of Legal Studies, Panjab University
Abstract
With the rising voices for gender equality, one of the significant issues which is paid heed to is privacy rights of women. The provisions in the Medical Termination of Pregnancy Act, 1971 lay down the basis on which abortion is considered legal and some of which obstruct the right to privacy of a pregnant woman. Similarly in the issues such as cases of sexual assault, reproductive and maternity services, etc., a woman has to choose between right to privacy and right to make personal choices or receive benefits/ remedies. This blog highlights such cases where women find themselves in a quandary about which path to take.
Introduction
Right to Privacy was given the status of Fundamental Right by the case of Justice K.S. Puttaswamy v. Union of India[1]. It has also been related to human dignity and is recognized as a human right under International Covenant on Civil and Political Rights, Universal Declaration of Human Rights and other international laws. However, Right to Privacy is often ignored in several aspects of a woman’s life due to which it has become one of the most debatable issues. Growing technological advancements have threatened women’s right to privacy and the movement of women empowerment, time and again, brings this topic into the limelight. Some common examples of privacy of women are the acts of leakage of private pictures of women online, privacy issues in the cases of abortion, etc.
Personal Autonomy in Abortions
Some countries allow abortions without any conditions or justification while in some others abortions are permitted only to save the life of a woman. The statute called Medical Termination of Pregnancy Act, 1971 governs abortions in India and it says that abortions are permitted only upon the fulfillment of certain conditions stipulated under Section 3. Conditions are (i) if the pregnancy does not exceed 12 weeks; (ii) where the length of the pregnancy is between 12 and 20 weeks and atleast two medical practitioners opine that there is a risk to life or possibility of grave injury to her physical or mental health of the pregnant woman; (iii) where the length of the pregnancy is between 12 and 20 weeks and atleast two medical practitioners opine that there is a “substantial risk” that the child will be born with physical or mental abnormalities. India is said to have a liberal approach towards abortion laws but the question arises that whether these laws take into consideration the right to privacy of a woman. When the length of the pregnancy exceeds 12 weeks, Section 3(2) (b) necessitates the opinion of medical practitioners before the termination of pregnancy which nullifies two essential rights of a woman, namely, right to privacy and right to make a reproductive choice. In the landmark judgement of Suchita Srivastava v. Chandigarh Administration[2], termination of pregnancy of a woman who was suffering from mental retardation was in issue. The woman was raped in a government run welfare institution in Chandigarh and she did not give consent for the termination of her pregnancy. Consequently, the Court held that, “we need to look beyond social prejudices” and consent of a woman is an essential prerequisite for the termination of pregnancy. With regard to Article 21, the Court observed that 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. 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 exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods”.
Right to privacy of a woman includes right to make reproductive choices and “consent” for termination of pregnancy is supports this right of a woman. The Medical Termination of Pregnancy (Amendment) Bill focuses on the privacy concerns by allowing the termination of pregnancy upon the request of a woman. It has also expanded the ambit of “registered healthcare professionals” to make it more accessible.
Maintaining privacy in sexual assaults
Indian Penal Code stipulates punishments for crimes against women such as assault or criminal force with intent to outrage her modesty or disrobe, voyeurism, rape, etc. but from knocking the doors of law enforcement agencies to getting justice is a long drawn battle which often generates privacy concerns. Sexual assaults are considered a taboo in the society and the victim of a crime becomes the subject of public discussion. Consequently, the family of the victim considers it far more appropriate not to report cases than to suffer daily at the hands of people around them. As the victims think that these acts would bring disgrace to their family, they also refrain from giving any statement against the accused or perpetrators.
Another big enemy of privacy rights of a woman is marital rape. This non- criminalized crime very easily robs a woman of her right to privacy and dignity. Within the four walls of a room, the husband is allowed to carry on every act on his wife which is considered an offence in the Indian Penal Code, but just because of the fact that the man here is her husband, he is permitted to commit the heinous crimes of sexual assault and rape on his wife. Marital rape is not only an exception to Section 375 but also an exception to the right to privacy of a woman.
Privacy of minors
A lot of sexual crimes and acts are committed against minors where the probability of getting convicted is minute due to the non-reporting of these acts. One of such acts is the practice called khatna which is female genital mutilation or female circumcision cutting. This practice is common in Bohra Muslim community and involves cutting off of clitoral hood or clitoris of the children of 6-7 years of age in order to preserve the chastity of the girl. It is usually done by the midwives who do not even pay heed to hygienic conditions during the process. This practice is an utter disregard to the privacy, dignity and personal autonomy of a girl along with sufferings in the form of other severe health problems which they have to face post khatna. If reported, these acts constitute a crime under Sections 319 to 326 of IPC as well as under Protection of Children from Sexual Offences Act, 2012. Due to the fear of ex-communication and under the garb of religion, this practice is still secretly followed by the Bohra community in the world.
Reproductive and Maternity Rights
Surrogacy, contraceptives and maternal services are all controlled by the rules and regulations which intrude privacy rights of a woman. Under the Pradhan Mantri Matru Vanadana Yojana, it is mandatory to produce an identification document which is AADHAR card. This scheme gives monetary assistance of Rs. 5,000 to pregnant women in three installments for the birth of their first child. The assistance is lower than the Rs. 6,000 entitlement for all births, not just the first child, under the National Food Security Act, 2013.[3] It is vivid that the scheme violates privacy rights. Public hospitals mandate women to produce AADHAAR cards to receive maternal healthcare. Even without specific notices from the Centre regarding the same, many hospitals have made AADHAAR compulsory for the availing of any reproductive health procedures. In 2017, a hospital in Chandigarh denied ultrasonography services to a pregnant woman as she failed to produce her AADHAAR card. Due to this refusal, she was forced to go to a local doctor who did not carry out the procedure properly, resulting in the need for intensive medical care and blood transfusion.[4] This is nothing but monitoring of woman’s body and choices which severely affects her privacy concerns.
Surrogacy also impacts privacy rights. It refers to a form of third party reproductive practice in which intending parent(s) contract a surrogate mother to give birth to a child.[5] According to Assisted Reproductive Technology (Regulation) Bill, “Surrogacy means an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention to carry it to term and hand over the child to the person or persons for whom she is acting as a surrogate”. In India, commercial surrogacy was banned in 2015 due to various factors, one of which was to protect the privacy of the surrogate mother. Surrogacy (Regulation) Bill of 2016 was replaced with the bill of 2019 which allows surrogacy to Indian couples who are unable to procreate children due to infertility. As the bill does not allow every couple to have children by means of surrogacy, it infringes their privacy rights as they have to disclose their infertility matters in order to choose this option. Moreover, the rights of surrogate mothers are often violated due to unavailability of any codified laws. This is an area which should be worked upon in order to provide reproductive fairness to the surrogate mother and the couple willing to choose surrogacy for expanding their family.
Concluding Remarks
In order to protect the privacy of victims of sexual assaults or woman who want to undergo abortions, an effective system needs to be constructed with the collaborative efforts of the doctors, police, media and judicial system who should be made aware of the practices and measures which could ensure privacy rights to a woman and help her in preserving her identity from the prying eyes of the society.
Codified laws should be made against the practices such as khatna which are still followed in India. Furthermore, education, apprising girls and women of their right to personal autonomy and privacy, is the need of the hour so that no voice gets suppressed and every crime could be duly reported. Surveillance in the form of seeking welfare benefits are also acting as roadblocks in ensuring right to privacy to women and highlights and promotes gender discrimination.
Disclaimer – All views and opinions expressed in this article are personal and belong solely to the author(s) and do not necessarily represent those of the LAABh Foundation or the individuals and institutions associated with LAABh Foundation.
[1] (2017) 10 SCC 1.
[2] (2009) 9 SCC 1.
[3] SCROLL.IN, https://scroll.in/pulse/945587/how-aadhaar-is-making-it-harder-for-indian-women-to-access-their-maternity-benefits (Last visited August 25, 2021).
[4] Anamika Kundu Privacy and Poverty of Women: With a focus on Reproductive and Maternity Rights in India, 12 JOURNAL OF INDIAN LAW AND SOCIETY 11, 12-13 (2021).
[5] UNITED NATIONS HUMAN RIGHTS OFFICE OF THE HIGH COMMISISONER, https://www.ohchr.org/EN/Issues/Children/Pages/Surrogacy.aspx (Last visited August 25, 2021).
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