Religion and Reproductive Rights of Women: A Jurisprudential Study

This article was written by Toshali Pattnaik a student of National Law University, Assam.

INTRODUCTION

The logic of rights emanates from the desire of emancipation and the instrument of power in order to gain recognition and accrue identification. The story of human rights in the ambient of religious pluralism[1] and reproductive rights is in pari materium to the myth of Medusa.[2] Human rights appear like Medusa, ravished by a possessive community to maintain the pre-existing cultural power. Close scrutiny of the area of semantic intersection of religion and reproductive rights reveal that once the appanage of using rights for the maintenance of established cultural practices is conceded, the appealing voices of those seeking and struggling for emancipation from different backgrounds is restrained. Thus, religious pluralism and appeals for reproductive rights and gender equality is ignored. When the emancipatory essence of rights is attacked for using it as privileges to maintain the cultural beliefs of the circumscribed religious communities, a certain degree of homogeneity is disseminated, subjugating diversity and religious pluralism.

Just as Medusa’s appealing tresses captivated many suitors, similarly, rights attract claimants. Some of them aspire it for emancipation where as others for promotion of their own interests. Thus, rights become the common grounds of claim between the rich and the poor. When there arises a question of justice, the relevant favour is inclined towards the rich.  Thus, the very idea of justice expected in this perpetual conflict, is dubious. This is the precise scenario in case of reproductive rights. The conclusions deduced from feminist arguments is that they accept the idea of secularism while considering religion as an abject other.

Intersections of reproductive rights and religion in legal conflict regarding regulation of access to IVF, pre-implantation diagnostics, access to contraceptives etc. are pivoted on the identity principle of the community.[3]   Further throwing light on the overlapping domain of religion and reproductive rights, the elucidation presented is that even while making reproductive choices and decisions, religious beliefs and differences are often taken into account. A paradigmatic example of the junction of religion and reproductive rights can be seen in Europe. In European terms[4], reproductive rights and religious pluralism is considered to be the basis of democracy. Despite the commitment towards gender equality, Europe was not inclined towards enforcement of reproductive rights for a long time and that is why the feminist scholars had argued that without reproductive rights, other socio-economic rights were limited in power.

Religion is believed to emanate from the divine that is out there. It is a response to the sacred[5]. Religion considers birth to be the blessing of the Lord. It is hitched with something heavenly. Thus, with the emergence of the logic of rights (in this context, reproductive rights), people endeavored to control the creation of life through birth control mechanisms. From religion’s perspective, in vitro-fertilization, birth control mechanisms, use of contraception and abortion are insults to the divine power. On the contrary, the rationalists, keeping in mind the exploding population, blatant crimes, and welfare of the mothers, prefer and promote reproductive rights and argue that it is in juxtaposition with right to privacy. This incessant conflict between the two has incited generations of scholars to produce seminal works in this field.

SAINT THOMAS ACQUINAS

St. Thomas Acquinas was the first theologist who in his polemical work ‘Summa Theologica’ regarded law as a means to an end. He believed in following the divine law embodied in the scriptures.

For Acquinas, God is not an abstract entity about which man speculates and which has no significance in his life. Rather, God is the source of being, truth and goodness, in whom we live, move and exist; God is more intimately present to us than we are to ourselves.[6] Further, Thomas Acquinas distinguished law into four categories: eternal, divine, natural and man-made. Eternal law reflected God’s grand blueprint for the world, divine law is that which finds expression in the scriptures, natural law was eternal law as it applied to human conduct and man-made law was devised by human beings to befit natural law as per the changing society. For Acquinas, the elementary precept of natural law is per se nota, known through themselves. Acquinas propounded that ‘Good is to be done and evil is to be avoided.’ He believed in the principle of non-contradiction, which like the fundamentals of natural law were general and static. On the contrary, man-made laws are dynamic and accommodating. Further Acquinas maintains that when human laws contravene natural laws, they are regarded as ‘acts of violence’ and ‘perversion of law’. Such laws have no legal validity and cease, in this regard, to be law as the law of nature is the foundation of all human laws.

Among the various significant precepts of human law that he propounded, the ones relevant for the purpose of this project are: to live honorably and to injure no one.  Acquinas explicitly stated that man is rational and can regulate his destiny to a substantive extent but he is subjugate to certain natural impulses such as impulse of self-preservation, reproduction of his species, bringing up children, etc. keeping in mind his future prospects. In addition to this, he asserts that man should strive towards his survival and continuity and for that purpose, must do everything that is necessary. Doing anything against these ends shall be morally wrong.

Inspite of his arguments defending eternal law, he had agreed that natural law emanates from reason and reason was the exclusive repository of social life of men. He believed in the legal supremacy directed towards attainment of common good. Moreover, he put forth distributive theory of justice, where the basic idea of justice was embedded in respecting the rights of others.

RELIGION AND REPRODUCTIVE RIGHTS OF WOMEN

Before proceeding to the jurisprudential content of this project, it is important to extrapolate the discord between religion and reproductive rights of women. As has been previously stated, religion attaches divine importance to the cycle of birth and death. The very concept of reproductive rights is perceived as an offense against the divine entity. Thus, arose the clash between the two.

In the medieval period, the State was dominated by ecclesiastical doctrines which was propagated to establish the supremacy of the Church. At that time, saints like Augustine propounded the supremacy of divine law over all other laws. This divine law was inscribed in the scriptures and was subject to interpretation by the Church. Thus, the Church exercised undue dominance on the lives of the individuals by disillusioning them on the pretext of religion.

However the onset of renaissance, marked the commencement of a new era. Rationalization and emergence of new ideas enlightened many souls and freed them from the psychological burden of subjugation to the rule of the Church. The influx of reason opened the gates to exclusive scientific inventions, the idea of nationalism, growth of trade and commerce, etc. The cumulative impact of these progressions was the demand for an absolute sovereignty overthrowing the domination of the Church. People began questioning the precepts that had been propagated by the Church, in terms of rationality. As a result of this, the previously held beliefs and notions withered away with the setting up of a new world.

The logic of rights and obligations to perform duties gradually accompanied reasoning. People realized their self-worth and the indispensable role of an individual for the development of a State. Thus, it can be deduced that the tussle between religion and rationality has existed since time immemorial.

2.1 SIGNIFICANCE OF REPRODUCTIVE RIGHTS

Reproductive rights are considered to be one of the most controversial part of women’s rights as there is no global consensus in this issue. Historically, women’s reproductive rights i.e. the right to decide on the number and spacing between children was subject to boundaries constituted by public morality and state intervention.[7] Despite the advent of modernity, the free access to reproductive rights is still viewed as a lingering question whose boundaries are still intensely contested.

One of the burning issues in this domain concerns legality of abortion and the discretion enjoyed by the women considering the limitations imposed by religion, society and state. Contemplating the exploding population, spread of sexually transmitted diseases, crimes like rape, genetic aberration, etc., the significance and relevance attached to the reproductive rights of women is indispensable.

Other than the above mentioned factors, a lot many exist which justifies bestowing such rights on women. In general parlance, child rearing is viewed as a joint activity of the couples. However, women has a disproportionate responsibility during earlier years. If the mother is not biologically prepared to conceive the child, or is not ready to bear the responsibility of parenthood, reproductive rights come into the picture. In the light and context of the significance of reproductive rights, the case of Savita Halappanavar and Mary McGee’s case.

2.2 DIFFERENT RELIGIONS AND REPRODUCTIVE RIGHTS

The opposition of conservative religious actors to reproductive rights is one of the greatest obstacles faced by women’s right activists. Razavi, an activist, writes: “This has been evident in the alliance forged between some Islamic states and the Vatican (in the context of United Nations Conference in 1990s) in opposition to the demands of global women’s movements for gender equality and most explicitly in sexual and reproductive rights.[8]” The idea of reproductive rights spawned around the concept of family planning in the United Nations Population and Development Conference in Cairo (1994). Later there was a paradigm shift from this idea to a new and broader approach to reproductive rights.  The Beijing Conference in 1995 explicitly reflected the growing tension between universal rights and religious particularism as well as the secular and religious actors.

The Mexico City Policy in North America had a detrimental effect on the reproductive health of women as it prohibited abortions except in the case of rape, incest and danger to the mother’s life. It even extended advice and information relating to abortion services and any lobbying activity for the legalization of abortion. However, it has recently been repealed by President Obama in 2009.

Christian Religion: Conservative religious traditions and beliefs hinder women’s access to reproductive rights and services. In Nicaragua, Colombia, and Mexico City[9], the collision between the influence of the Catholic Church and women’s right activist portrays the intensifying tension regarding abortion rights. However, the barriers erected to prevent access to reproductive rights by the Catholic Church finally dismantled with the legalization of abortion in Mexico City in 2007.

A close study of the demographic statistics and sex ratio of India and China shows the inclination of sex ratio towards masculine than feminine. Amartya Sen, in his seminal work ‘More than Hundred Million Women are missing[10]’ argues that this disproportionate sex ratio in the two countries reflect the level of care that women receive within the particular societies. In India, the role and responsibilities of women are engrained in the religious beliefs and practices. However a close scrutiny the interfaces between religion, gender and dowry require thorough investigation in order to speculate the reasons behind dowry deaths. Female infanticide and selective sex abortions are practices which have disturbed the sex ratio of the country.

Hindu Religion: The concept of Dharma in the Vedas has undergone changes in the three phases enlisted in this sacred literature. They are: Samhita, Brahmana and Upanisad. The Samhita period defines dharma as the preservation of the cosmic order, the Brahmana phase explains dharma as orderliness and the Upanisad facet gives importance to personal morality and salvation. However, this trend is opposite to that of right which moves from individual to cosmic. Thus, before exploring the intricacies of the situation,  a superficial understanding of the tenets of Hinduism and the logic of rights establish the pitfalls involved in comparing the two.

The very fact that the concept of dharma provided in the Upanisad phase is individual prone, makes the incorporation of reproductive rights as individual rights, excessively necessary. Moreover, India is a democratic republic. The fact that reproductive rights stems from demography and demography is closely associated with democracy, should give reproductive rights an upper footing in the society. When viewed from the perspective of Hindu religion, every individual owes a duty towards the cosmic order as well as to the social arrangements. This duty is recognized to be the duty to reproduce[11]. Though the right to contraception of males is recognized[12], women are bestowed with the responsibility to reproduce. Thus, religion creates tension between rights and responsibilities.

From traditional Hindu perspective, women have a duty to reproduce and a right to reproduce. However what is lacking in the scenario is access to reproductive rights.  Reproductive rights include not only the right to reproduce, but even the right not to reproduce, right to contraception, family planning and abortion. In Hindu Dharmic discourse, it is the dharma of the couple and of women, to multiply. It establishes that what may be dharma at one time, may with the passage of time become adharma. For instance, a student’s dharma is to remain celibate whereas celibacy becomes adharma once an individual gets married. These staunch believes denied women access to reproductive rights. However in modern India, Hindu women have access to reproductive rights such as the right to family planning, contraception and abortion. The credit for this changing scenario is attributed to the logic of rights which penetrated in the Indian society and made way through the devout beliefs.

Muslim religion: The risks associated with unsafe sex, teenage pregnancies and unsafe abortion are compounded by poor access to reproductive rights such as contraception. The situation for single mothers is all the more precarious because of the social stigma and legal barriers that deter them from accessing the necessary contraceptives. In this scenario, it is incredibly important to make access to reproductive rights increasingly facile in order to improve the reproductive health of women.

The exercise of reproductive rights by Muslim women varies with their identity, age, marital status, sexual orientation, ethnicity or class. The salient additional concepts that accompanies the negotiation of reproductive rights by Muslim women are self-determination over one’s body and sense of entitlement to one’s rights.[13] This means if a single Muslim women desires sexual relations prior to her marriage, she does not consider herself entitled to such freedom and even if they engage in pre-marital sex, they themselves consider it inappropriate and inexcusable. If a single woman is raped, she feels conscious before negotiating her reproductive rights due to the social stigma and re-victimization.

While considering the reproductive rights of Muslim women, two aspects has been taken into consideration for limiting the scope of the project. Firstly, access to sex education and secondly, right to HIV and STD prevention and treatment. Studies have shown that Islamic schools in Indonesia promotes sex education where the focus is laid upon sex within marriage, the rights of both spouses to sexual satisfaction and mutual fulfillment through emotional and physical intimacy, and not on premarital sex as it is considered a sin according to Quran.

Polygamy is permissible in Muslim law as a result of which men engage in sexual relationships with multiple women. This drags in the peril of sexually transmitted diseases if proper contraception is not used. Lack of knowledge and awareness of prevention and treatment of these implacable diseases, worsens the situation. But the restrictions imposed on women limit their scope of accessing these rights.

2.3 AN ANALYSIS WITH REFERENCE TO THOMAS ACQUINAS

Thomas Acquinas believed in the supremacy of the divine law emanating from God, which was enshrined in the scriptures and subject to interpretation by the Church. He laid huge impetus on religion. From the point of his argument, the very idea of reproductive rights would be immoral. In this context, it might be argued that morality is subjective. However for Acquinas, morality is the respect for life as was propounded by the Church. Thus, attempts and endeavors to control life through use of contraceptives and end life by means of abortion would be considered sin. In addition to this, he had contended that those human laws which are in contravention to the divine law will be considered to be ‘acts of violence’ and perversions of law’ and will have no legal validity. Thus, from his perspective, as the logic of reproductive rights is an offense to the grand blueprint of God for the entire shebang, its validity is questionable.

While the above arguments of St. Thomas Acquinas were used to negate the very concept of reproductive rights, some of his arguments can be established in support of the same. Acquinas had explicitly propounded that ‘Good is to be done and evil is to be avoided.’ Man discovers this imperative in his conscience, it is like an inscription written by God himself. Man consults his nature to distinguish between good and bad. He examines an action in comparison with his essence to see whether the action fits human nature or does not fit it. If it fits, it is considered good. If it does not fit, it is considered to be ‘evil’[14].  Thus, good would imply the common good of the society. Non-exercise of reproductive rights would aggravate evils like HIV, STDs, population explosion, maternal mortality, etc. which would be detrimental for the society. Thus in order to avoid these evils, it is of utter necessity that reproductive rights be negotiated. Moreover, two of the many human law precepts that he had put forward are: to live honorably and to injure no one. In this light and context, reproductive rights, being a part of the domain of individualistic rights, are incumbent for a life of dignity and honor.

Further, he maintains that man is rational and subject to the impulses of self-preservation, reproduction of his own species etc. and should strive towards his own survival and continuity. To present the elucidation in a nutshell, it can be stated that the very logic of reproductive rights stems from the idea of welfare, preservation, survival, and continuity of an individual. The fact that he believes in the rationality of men, makes it crystal clear that men can and will do what he thinks is necessary for the continuation of his race.

At last, he gives the concept of distributive justice whose idea is embedded in respecting the rights of others. Thus, it can be deduced that justice will be served if and only if men display respect towards the reproductive rights of women.

CONCLUSION

The concept of reproductive rights, in almost every religion, is contestable. The traditional and conservative religious actors are often disinclined in granting the freedom to women as is necessary for negotiating reproductive rights. Thus, the conflict between religion and reproductive rights can be historically traced back to the tussle between the Church and the enlightenment supporters. For the purpose of this project, reproductive rights are the right to contraceptives, abortion, sex education, prevention and treatment of STDs, birth control mechanisms, family planning, proper reproductive care for pregnant and lactating mothers etc. The logic of reproductive rights stems from the idea of domineering the exploding population, preventing maternal mortality, family planning, etc. Thus, with the passage of time, the exercise of reproductive rights is becoming all the more important. Different religions have different approaches towards exercising or non-exercising of reproductive rights. However with the seeping in of modernity and rationality, the staunch and conservative beliefs have become liberal to some extent. Hindu women now have access to contraceptives, abortion and family planning. Muslim women have the right to sex education and prevention as well as treatment of HIV. Though it will be accepted by many scholars that the negotiation of reproductive rights is still a lingering question on which countries have not yet arrived on a consensus, the slow and gradual change in the approach is believed to open gates to a new era. Moreover, the arguments put forth by Saint Thomas Acquinas can be used both for and against the title of the project as has been comprehensively provided in the preceding chapters. Thus, it can be concluded that though the collision between religion and recognition of reproductive rights have always existed, there are emerged some grounds where they no more collide i.e. a large area of semantic intersection lies between the two, exploring which lies beyond the scope of this paper.

[1] David Ray Griffin, Deep Religious Pluralism,Westminster John Knox Press, 14(2005).

[2] Medusa was a beautiful maiden with wonderful braids. She was changed into one of the Gorgons with snakes on her head and a deadly gaze in the aftermath of an unwanted affair with Poseidon in Athena’s temple. Beholders of Medusa’s face were instantly turned into stone. Doroto Anna Gozdecka, Rights, Religious pluralism, and the Recognition of Difference: Off the Scales of Justice, Routledge 117(2015).

[3] Doroto Anna Gozdecka, Rights, Religious pluralism, and the Recognition of Difference: Off the Scales of Justice, Routledge 118(2015).

[4] Doroto Anna Gozdecka, Rights, Religious pluralism, and the Recognition of Difference: Off the Scales of Justice, Routledge, 118(2015).

[5] Daniel C. Maguire, Sacred Rights: The Case for Contraception and Abortion in World Religions, Oxford University Press, 3(2003)

[6] Leo Elders, The Philosophical Theology of St. Thomas Acquinas, Brill Archive, 25(1990).

[7] Feryal M. Cherif, Myths about Women’s Rights: How, Where and Why Rights advance, Oxford University Press,  116(2015).

[8] Matthew Clarke, Handbook of Research on Development and Religion, Edward Elgar Publishing, 188(2013)

[9] Matthew Clarke, Handbook of Research on Development and Religion, Edward Elgar Publishing, 189(2013)

[10] Id. at 200.

[11] Arvind Sharma, Religious Studies and Comparative Methodology: The Case for Reciprocal Illumination, SUNY Press, 174 (2012)

[12] Id. at 174.

[14] Brian Davies, Thomas Acquinas’s Summa Theologiae: A Guide and Commentary, Oxford University Press (2014).