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  • Aarushi Malik

Her Disability, Her Decision: Is Women’s Reproductive Autonomy a Universal Right, or is its Application Disability-Qualified?

Women with disabilities find themselves at the nexus of multiple layers of marginalisation and vulnerability. Throughout history and across cultures, persons with disability have been viewed as 'objects of charity requiring social protection' and women as second-class citizens. Women with disabilities thus bear the weight of stereotypes and discrimination stemming from the intersection of gender bias, ableism, and societal misconceptions that render them invisible and voiceless. This permeates every dimension of their lives, including their sexuality, reproductive rights, and sexual autonomy. There is evidence, albeit limited, to the effect that only 29% of births by mothers with disabilities are attended by skilled health workers, while 22% of married women with disabilities lack access to family planning services.


Barriers to Reproductive Autonomy

Societal norms and the historical prevalence of the medical model of disability, among other factors, resulted in persons with disabilities traditionally being viewed as incapable of managing their own fertility, procreating, or caring for children and, thus, being written off as being unfit for marriage. Thus, in times when the sole purpose of marriage and sexuality was procreation, sexuality and associated rights then figured as the exclusive propriety of heterosexual, non-disabled men, with non-heterosexuals, women, and persons with disabilities being entirely left out of the imaginative sphere in the discourse around sexual and reproductive health. This systemic neglect fostered misconceptions and harmful stereotypes about persons with disabilities, depicting them as either asexual and incapable or hypersexual, irrational, and lacking control. These narratives were then used to reinforce beliefs about women with disabilities being inherently vulnerable, child-like, and requiring protection. Adolescent girls with disabilities were thus denied access, not only to information on sexual health and sex education but also concerning sexual abuse and violence, despite their greater vulnerability to violations. They also came to be at greater risk of unwanted pregnancies and sexually transmitted infections, including HIV/AIDS. This aided their marginalisation and the misconceptions regarding women with disabilities that so arose till date manifest themselves as barriers in everyday life, with the World Health Organization, Department of Reproductive Health and Research and United Nations Population Fund (2009) reporting that in communities where health workers, social workers, and midwives offer sexual and reproductive health services directly in people’s homes, they often tend to skip the homes of persons with disabilities, assuming that they do not require such services. These misconceptions also aided the perpetuation of control over their virginity, chastity, and overall sexuality. Consequently, the autonomy, particularly sexual autonomy of women with disabilities, became everyone else’s business but theirs.


Current Reality-Persistent Challenges

The right to procreation and motherhood, especially in cases of women with intellectual disability, accordingly, came to be and continues as such to be a subject matter determined by guardians and caregivers. Forced hysterectomies even came to be reported from state-run shelters. Over the years, women with disabilities thus came to be subjected to numerous forms of oppression, including guardianship and institutionalisation, coerced sterilisation, limited access to contraception, suppression of menstruation and sexual expression, poorly managed pregnancies, forced abortions, eugenics, inadequate prenatal care, forced abortions, loss or termination of parental rights.


The subject of sexual and reproductive autonomy of women with disabilities came to be prominently highlighted in the context of termination of pregnancy. In the case of Suchita Srivastava & Anr. v. Chandigarh Administration (2009) 9 SCC 1, the Chandigarh Administration presented a plea before the Punjab & Haryana High Court for termination of pregnancy of an orphaned woman with intellectual disability who was housed at a government-run welfare institution. The pregnancy was conceived as a consequence of rape. The administration argued that, given the woman’s intellectual disability and the absence of parental or guardian support for herself or her potential child, termination of the pregnancy was the most practical course of action. A Division Bench of the High Court directed the termination of the pregnancy despite the victim communicating to a Court-appointed Expert Body her preference to bear the child. The Supreme Court overturned the decision of the High Court and held that the pregnancy could not be terminated without the consent of the pregnant woman with intellectual disability. It is pertinent to note that even as recently as 2009, the courts were considering the distinction between the same rights as applicable to women with intellectual disabilities and all other pregnant women.


Despite Shift, Legislative Gaps Persist

The adoption of the Convention on the Rights of Persons with Disabilities by the United Nations (‘UNCRPD’) has been hailed as marking a significant shift at the world level in the sentiment towards and understanding of disability - from the medical to the social and human rights model. It also prompted the recognition of various rights and accommodations for persons with disabilities, which was mirrored in the domestic context of various nations. In India, it prompted the adoption of the Rights of Persons with Disabilities Act, 2016 (‘RPWDA’). While the RPWDA guarantees a host of rights to persons with disabilities, including the rights to equality and non-discrimination,[1] protection and safety,[2] protection from cruelty and inhumane treatment,[3] abuse, violence, and exploitation,[4] access to justice,[5]  and community living;[6] it fallaciously buckets autism in the category of 'intellectual disability', despite its global recognition as a developmental disability.

 

UNCRPD and RPWDA, in recognition of women’s particularly vulnerable position, provide special provisions for ensuring that they enjoy their rights equally with all others (Article 6 and Section 4). It is to be noted that the overall focus of legislation and policy-making has remained on enhancing educational and employment opportunities for persons with disabilities, as evidenced by Chapter VI of the RPWDA, which provides for affirmative action in the nature of reservation for persons with benchmark disabilities in these sectors. This, though much needed, seems to have obscured the subject of autonomy, including the sexual and reproductive autonomy of women, particularly those with intellectual disabilities. The UN Committee on the Rights of Persons with Disabilities, in its consideration of the initial report of India on its implementation of the provisions of the Convention on the Rights of Persons with Disabilities, highlighted the troubling normalisation of violence against persons with disabilities in institutions, particularly women and girls with intellectual disabilities. The Committee further noted that women and girls with intellectual disabilities were at a significant risk of forced institutionalisation due to the absence of recognition of legal capacity of persons with intellectual disabilities in the Mental Healthcare Act, 2017.


There is thus an apparent dissonance with the RPWDA, which guarantees to persons with disabilities independence, the right to inherent dignity, and individual autonomy, including the freedom to make one’s own choices,[7] besides reproductive rights, including access to appropriate information.[8]  The ground reality unsurprisingly then remains that women with disabilities continue to face significantly higher rates of violence, including from family members, intimate partners, caregivers, and even in institutional settings, compared to other women. They are viewed as “lesser women” by virtue of their likelihood of being in need of care or assistance as opposed to taking up the normative feminine nurturing and caring roles. This results in those around them supplanting their opinions and ideas about what would be in ‘the best interest’ of the woman, for her own independence and autonomy. More often than not, these notions of ‘best interest’ have been seen to stem from convenience and ease of those around, as opposed to the woman’s wants and desires.


Courts have also often undermined the wishes of the woman concerned and superseded them for what they understood or believed to be “in their best interests.” The Bombay High Court, in the case of X v. Union of India (2017) SCC OnLine Bom 9334, allowed termination of pregnancy based on the decision of the guardian of the rape victim with intellectual disability. The Court made observations to the effect that ‘she is not even able to take care of herself’ and questioned her ability to care for the child. Ultimately, the Court allowed termination, deferring to the decision of her guardian, deemed to be in her "best interest".


Right Recognised, Reality Unchanged

It thus comes as almost a relief now that there has been a turn of tide in recent times, at least in India, with pronouncements such as in X v. The Principal Secretary Health and Family Welfare Department & Anr (2022) SCC OnLine SC 1321 where the Supreme Court held that “the right to decisional autonomy means that women may choose the course of their lives… It is the woman alone who has the right over her body and is the ultimate decision maker on the question of whether she wants to undergo an abortion.” The Court, in this case, while doing away with the ‘artificial’ and ‘unsustainable distinction’ between married and unmarried women, further held that, “...The decision to have or not to have an abortion is borne out of complicated life circumstances, which only the woman can choose on her own terms without external interference or influence. Reproductive autonomy requires that every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorisation from a third party.” In the realm of sexual and reproductive rights, the Court underscored a comprehensive spectrum of rights encompassing access to education and information regarding contraception and sexual health, the liberty to select appropriate contraceptive methods, the prerogative to determine the timing and occurrence of childbirth, the freedom to choose the desired number of children, access to safe and legal abortion services, and the right to receive adequate reproductive healthcare. Ultimately, the Court highlighted that “...women must possess the autonomy to make decisions regarding these rights without coercion or violence.”


While these rights exist on paper for all women, their applicability in matters of implementation seems to be restricted by qualification based on disability, a view that predominantly appears to be endorsed by the courts. To effectively secure the guarantee of ‘reproductive choices as a dimension of “personal liberty” as under Article 21 of the Constitution of India’ translating to reality, what thus seems to be needed urgently is for the Supreme Court to decisively affirm the applicability of these rights to women with disabilities, particularly those with intellectual disabilities.

 

[1] Rights of Persons with Disabilities Act 2016, s 3

[2] ibid s 8

[3] ibid s 6

[4] ibid s 7

[5] ibid s 12

[6] ibid s 5

[7] ibid Preamble

[8] ibid s 10


This article has been authored by Aarushi Malik, a Research Fellow in the Disability (Inclusion and Access) Team at Vidhi, New Delhi. It is a part of RSRR's Excerpts from Experts Series.

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