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New Assisted Reproductive Technologies, Reproductive Rights & Freedom Of Choice Of Women - A Social Legal Enquiry

Infertility is a major public health concern in developing and developed nations. In certain societies, infertility carries a social stigma and is one of the key factors for breakup of families. The revolution created by assisted reproductive technologies (AIR) in infertility treatment has given hope to childless couples to have children.

The quality of diagnosis plays an important role in helping to deliver proper therapy to such couples. Assisted reproductive technology includes medical procedures used primarily to address infertility. This subject involves procedures such as in vitro fertilization, intracytoplasmic sperm injection, cryopreservation of gametes or embryos, and/or the use of fertility medication. 

Assisted reproduction techniques (ARTs) are defined as �all treatments or procedures that include the in vitro handling of both human oocytes and sperm or embryos for the purpose of establishing a pregnancy.� 35 years of assisted reproductive technology (ART) use has become one of the standard procedure of infertility treatment. More than 5 million babies are born after ART (1�5% births).

Therefore, it is necessary to monitor, evaluate and trace the modifications of procedures with growing technical development of medical practice in the field of reproductive medicine.  Assisted Reproductive Techniques have made tremendous developments by introducing new techniques that are advanced.

Some of them are as follows: 
Preimplantation genetic screening (PGS), Preimplantation Genetic Diagnosis (PGD), INVOcell, Egg Vitrification, Time Lapse Embryoscope, DNA Fragmentation Index (DFI), Endometrial Receptivity Array (ERA).

The Reproductive Rights & Freedom Of Choice Of Women

Global Fund for Women believes that a woman's ability to access comprehensive sexuality education, control her own body, and access the health services she needs� regardless of her sexuality, where she lives, her income level, or her ethnicity�is a fundamental right. Reproductive rights�having the ability to decide whether and when to have children�are important to women's socioeconomic well-being and overall health.

Women's reproductive rights may include some or all of the following: the right to legal and safe abortion; the right to birth control; freedom from coerced sterilization and contraception; the right to access good-quality reproductive healthcare.

In the landmark English case -  Griswold v/s Connecticut (1965), the Supreme Court ruled such laws were unconstitutional. Setting a precedent, the Court determined that a fundamental right to privacy exists between the lines of the Constitution. Laws prohibiting contraceptive choice violated this sacred right.

India's Conditional Right To Abortion 

Earlier the right to abortion was not permitted and it was strongly opposed by the society. The termination of pregnancy was termed to be a murder of the fetus. But due to the change in time and technology, nowadays this right has been legally sanctioned by most of the nations after the famous decision of Roe Vs Wade by the US Supreme Court.  in India is legal in certain circumstances. It can be performed on various grounds until 20 weeks of pregnancy. In exceptional cases, a court may allow a termination after 24 weeks.

According to The Medical Termination Of  Pregnancy Act, 1971, A woman has the right to abort IF:

  • The continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated
  • The termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman
  • The continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman
  • The continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, or injury to the physical or mental health of any existing child of the family of the pregnant woman
  • There is substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
  • Or in emergency, certified by the operating practitioner as immediately necessary:
to save the life of the pregnant woman or to prevent grave permanent injury to the physical or mental health of the pregnant woman.
The right to safe abortion is an important facet of their right to bodily integrity, right to life and equality and needs to be protected

Critical Analysis of Women's Reproductive & Sexual Rights in India

The recognition of sexual and reproductive rights of women in the country still remains negligible. Reproductive rights in India are understood only in the context of selective issues like child marriage, female foeticide, sex selection and menstrual health and hygiene issues.

This is reflected in election manifestos of various parties where political parties have promised to make registration of marriages compulsory, implement the laws prohibiting child marriages, provide reproductive and menstrual health services to all women across India, make marital rape an offence and to ensure strict implementation of the Pre-conception and Pre-Natal Diagnostic Techniques ( Prohibition Of Sex Selection) Act.

Women in India face various challenges on a daily basis. Unsafe abortions are the third leading cause of maternal deaths in India. Researches have shown that half the pregnancies in India are unintended and about a third result in abortion. Only 22% of abortions are done through public or private health facilities.

The lack of access to safe abortion clinics, particularly public hospitals, and stigma and attitudes toward women, especially young, unmarried women seeking abortion, contribute to this. While the The Medical Termination of Pregnancy Act, 1971 provides for termination only up to 20 weeks, The law does not accommodate non-medical concerns over the economic costs of raising a child, effects on career decisions, or any other personal considerations.

There is slight improvement, as the judiciary comes to the rescue. he Supreme Court has been extremely progressive on women's reproductive rights by decriminalising adultery and homosexuality (Navtej Johar judgment) the court has held clearly, that women have a right to sexual autonomy, which is an important facet of their right to personal liberty.

The Puttaswamy judgment specifically recognised the Constitutional right of women to make reproductive choices, as a part of personal liberty under Article 21 of the Indian Constitution. These judgments have an important bearing on the sexual and reproductive rights of women.

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