Integrating Mental Health Perspectives into the Legal Discourse on Reproductive Justice in India

Published date01 June 2019
Date01 June 2019
DOI10.1177/2277401719870643
Article
Integrating Mental
Health Perspectives
into the Legal
Discourse on
Reproductive
Justice in India
Malavika Parthasarathy1
Abstract
The reproductive justice framework envisions a world where all women, including
those situated at the intersection of multiple structures of oppression such as
class, caste, sexual orientation, disability and mental health, are able to exercise
their right to decisional and reproductive autonomy. S. 3(4)(a) of the Medical
Termination of Pregnancy Act, 1971, provides that an abortion cannot be per-
formed on a mentally ill woman without the consent of her guardian. I analyse the
Indian Supreme Court’s decision in Suchita Srivastava v. Chandigarh Administration
[(2009) 9 SCC 1] in light of contemporary legal developments in the field of
disability law and mental health law. The first argument that I make in this paper
is that the Rights of Persons with Disabilities Act, 2016, covers persons with
mental illness, with the rights in the Act applicable to those with mental illness
as well. The second argument rests on the Mental Healthcare Act, 2017, which
recognizes the right to privacy and dignity of mentally ill persons, including their
capacity to make decisions affecting healthcare.
I argue that the judgment, while path-breaking in its recognition of the repro-
ductive rights of disabled women, is inimical to the rights of mentally ill women,
perpetuating dangerous stereotypes about their ability to exercise choices, and
dehumanizing them. It is imperative for the reproductive justice framework to
inform legal discourse and judicial decision-making, to fully acknowledge the right
to self-determination and bodily integrity of mentally ill persons.
Journal of National
Law University Delhi
6(1) 21–38, 2019
2019 National Law
University Delhi
Reprints and permissions:
in.sagepub.com/journals-permissions-india
DOI: 10.1177/2277401719870643
journals.sagepub.com/home/jnl
1 Independent Researcher, Bangalore, India.
Corresponding author:
Malavika Parthasarathy, 1307, 12th Main Road, Judicial Officers’ Layout, GKVK Post, Bangalore 560065,
India.
E-mail: malavika.parthasarathy95@gmail.com
22 Journal of National Law University Delhi 6(1)
Keywords
Reproductive justice, abortion, Mental Health Law, disability rights, Medical
Termination of Pregnancy, feminism, gender and sexuality
Introduction
The right to abortion services forms a crucial part of the reproductive rights
framework, with countless campaigns by the women’s movement across the
world and in India advocating for the right of women to access safe and effective
abortion services. Because this right has been shaped by concerns about sexuality
and morality, it is a hotly contested issue. A reproductive rights framework lays
emphasis on the right of a woman to be able to exercise her agency in being able
to decide the number and spacing of her children.
However, the reproductive justice framework, the contours of which were
scripted primarily by black feminists and feminists from the Global South, envi-
sions a world where women are not only free to decide the number and spacing
of their children but are also provided with the support required to make these
choices.1 A mere legal right to pursue one’s reproductive choices, in the absence
of structures that can enable these choices, rings hollow. The question of who
has the ability to exercise these choices, and whether society enables the exer-
cise of these choices, arises.
A reproductive justice framework believes in social change, in contextualising
rights and locating them within broader concerns such as race, caste, class, sexual
orientation, disability and mental health.2 The location of the idea of reproductive
justice in feminist consciousness is critical to understanding questions of wom-
en’s dignity, autonomy, bodily integrity and privacy.
One of the most comprehensive statements of the rights of persons with mental
illness is the United Nations Principles for the Protection of Persons with Mental
Illness and the Improvement in Mental Health Care, 1991. The World Health
Organization (WHO), laying emphasis on the 1991 principles, articulated 10
basic principles of mental health care law.3 One of the most significant principles,
which will animate most of the arguments that I make, is that there should be no
discrimination on the grounds of mental illness and that all persons with mental
illness have the same rights to medical and social care as others.4
Reproductive rights is a relatively new concept, and it gained traction after the
International Conference on Population and Development (ICPD). The outcome
1 Kimala Price, What is Reproductive Justice? How Women of Color Activists Are Redefining the Pro-
choice Paradigm, 10 Meridians 42, 42 (2010).
2 Sarah London, Reproductive Justice: Developing a Lawyering Model, 13 Berkeley. J. afr. aM. l.
Poly. 71, 72 (2011).
3 Brendan D. Kelly, Mental Health, Mental Illness, and Human Rights in India and Elsewhere: What
Are We Aiming For, 58 indian. J. Psychiatry. 168, 170 (2016).
4 UN Protection of Persons with Mental Illness and the Improvement of Mental Health Care Principles,
G.A. Res. 46/119, U.N. Doc. A/RES/46/119 (Dec. 17, 1991).

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