Reproductive Rights of Persons with Disabilities

For decades, the reproductive lives of disabled persons in India were governed by the convenience of others. Women in institutions were sterilised to spare caregivers the burden of menstruation; pregnancies were terminated on the say-so of guardians; and the very idea that a person with an intellectual disability might choose to bear a child was treated as an absurdity. Section 10 of the Rights of Persons with Disabilities Act, 2016 ("RPwD Act") reverses that history in two crisp sub-sections: it guarantees access to reproductive and family-planning information, and it forbids any procedure leading to infertility without the person's own free and informed consent. Read alongside the Supreme Court's reproductive-autonomy jurisprudence — Suchita Srivastava, Devika Biswas and X v. NCT of Delhi — Section 10 marks a decisive shift from a paternalist "best interests" model to a consent-and-autonomy model anchored in Article 21. This chapter unpacks the provision, its criminal-law backstop in Section 92, and the case law that gives it teeth.

The text of Section 10 and what it actually says

Section 10 of the RPwD Act, 2016 is titled "Reproductive rights" and is deceptively short. Sub-section (1) directs that the appropriate Government shall ensure that persons with disabilities have access to appropriate information regarding reproductive and family planning. Sub-section (2) provides that no person with disability shall be subject to any medical procedure which leads to infertility without his or her free and informed consent.

Two distinct obligations sit inside this provision. The first is a positive duty — the State must affirmatively supply reproductive and family-planning information in formats the person can access and understand. This is not a passive non-interference clause; it imposes a programmatic obligation that connects directly to the State's healthcare duties under Section 25 and the accessibility duties that run through the Act. The second is a negative or protective duty: a prohibition on sterilisation and other infertility-inducing procedures absent the individual's own consent. Crucially, the consent contemplated is that of the person with disability, not a guardian, a parent, or an institutional head. The phrase "free and informed consent" is the doctrinal heart of the section and the bridge to the Supreme Court's autonomy jurisprudence discussed below. For the broader scheme of statutory entitlements within which this right sits, see our chapter on rights and entitlements.

It is also worth noticing what Section 10 does not say. It does not carve out an exception for persons with intellectual or psychosocial disabilities; it does not make the right contingent on a capacity assessment; and it does not subordinate the individual's consent to family or institutional approval. The deliberate absence of these qualifications is significant. Earlier disability legislation — the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 — contained no analogue to Section 10 at all, treating reproduction as outside the frame of rights entirely. By placing reproductive rights in the substantive-rights chapter of the 2016 Act, alongside equality, accessibility and community living, Parliament signalled that reproductive self-determination is a core entitlement and not a welfare concession. The provision is unqualified by design, and any reading that smuggles a capacity threshold back into sub-section (2) must be justified against that deliberate legislative silence.

Why the section was needed: the history of forced sterilisation

Section 10(2) did not arise in a vacuum. It responds to a documented practice of sterilising women and girls with disabilities — particularly those with intellectual and psychosocial disabilities living in institutions — for reasons of "menstrual management" and caregiver convenience rather than the woman's own medical need or wish. The most notorious episode was the 1994 hysterectomy of intellectually disabled women at a government home in Shirur, Pune, which triggered national outrage and litigation. The justification offered — that the women could not manage menstruation and were vulnerable to sexual abuse — illustrates precisely the conflation Section 10 was designed to break: the conflation of protection with the extinguishing of reproductive capacity.

The drafters understood that disabled persons, especially disabled women, faced a double dispossession — first of decision-making capacity (presumed absent), then of bodily integrity (surrendered to a guardian or institution). Section 10(2) attacks the first link in that chain by relocating the locus of consent back to the individual. It is best read together with the Act's broader equality architecture, discussed in our chapter on the right to equality and non-discrimination, because the practice of selective sterilisation was itself a form of disability-based discrimination.

Suchita Srivastava: reproductive choice as personal liberty

The doctrinal cornerstone of disability reproductive rights in India is Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1, decided by a Bench of K.G. Balakrishnan, CJ, and P. Sathasivam and B.S. Chauhan, JJ., on 28 August 2009 — several years before the RPwD Act, but foundational to it. The case concerned an orphaned woman with mild intellectual disability (described as having "mild mental retardation") who became pregnant after an alleged rape while living in a government welfare institution in Chandigarh. The Administration approached the Punjab and Haryana High Court seeking authorisation to terminate the pregnancy. An expert body constituted by the High Court found that the woman wished to continue the pregnancy; nevertheless the High Court ordered termination, invoking a "best interests" rationale.

The Supreme Court reversed. It held that a woman's right to make reproductive choices is a dimension of "personal liberty" under Article 21 of the Constitution, and that this autonomy extends to the decision to continue a pregnancy just as much as to terminate one. Most importantly for disability law, the Court drew a sharp distinction between a person who is "mentally ill" and one who is "mentally retarded" (intellectually disabled), holding that the latter category retains decision-making autonomy and that her informed wishes could not be overridden under the Medical Termination of Pregnancy Act, 1971, which required the woman's own consent for adults. The Court declined to apply a substituted-judgment "best interests" test to displace her actual, expressed choice. Suchita Srivastava thus supplies the constitutional principle that Section 10 later codifies in statute.

Several strands of reasoning in the judgment repay close study. The Court grounded reproductive choice in a cluster of Article 21 values — bodily integrity, privacy and dignity — and observed that these protections inhere in the woman regardless of the circumstances of conception, so that even a pregnancy resulting from sexual assault did not dilute her right to decide. It accepted that the State, as parens patriae, could act for a person genuinely incapable of deciding, but held that this doctrine could not be invoked to override the expressed wish of a person who, though intellectually disabled, retained the capacity to form and communicate a preference. The Court relied on the report of the expert body it had itself constituted, which found that the woman understood she was pregnant and wished to continue, and it faulted the High Court for substituting its own assessment of her welfare for her actual choice. It also drew on the statutory distinction between "mental illness" and "mental retardation," holding that conflating the two would unjustly strip the latter group of an autonomy the law had preserved for them. The cumulative effect is a constitutional template: presume capacity, engage the actual person, and treat consent — not convenience — as the touchstone.

From 'best interests' to autonomy: the shift Section 10 cements

The genius of Suchita Srivastava lies in its refusal to treat intellectual disability as a blanket disqualification from decision-making. The Court accepted that capacity exists on a spectrum and that the law must engage with the actual person before it rather than a stereotype of incapacity. This anticipates the RPwD Act's wider conceptual move away from the guardianship-and-substitution model towards supported decision-making, reflected in Section 13 of the Act, which prefers limited guardianship and joint decision-making over plenary guardianship.

Section 10(2)'s insistence on "free and informed consent" must be read against this backdrop. Where a person can give informed consent — with support if needed — that consent is decisive and cannot be supplied by a third party. The "best interests" test, which once justified routine sterilisation of disabled women, survives only in genuinely residual situations where consent is impossible to obtain, and even then it is constrained by the procedural safeguards built into Section 92 (discussed below). The autonomy model also undergirds the disabled person's right to community living, since reproductive self-determination is meaningless if a person can be confined and sterilised at institutional discretion.

Devika Biswas: reproductive rights as part of Article 21 health

While not a disability-specific case, Devika Biswas v. Union of India, (2016) 10 SCC 726, decided by Madan B. Lokur and U.U. Lalit, JJ., on 14 September 2016, is indispensable to the reproductive-rights framework. The petition arose from a botched mass female-sterilisation camp in Araria district, Bihar, where dozens of women were operated on in unhygienic, assembly-line conditions, several suffering grave harm. The Supreme Court held that the right to health — including reproductive health and the right to make reproductive choices free of coercion — is an integral component of Article 21.

The Court issued detailed directions: phasing out sterilisation "camps" within three years, prohibiting informal numerical targets imposed on health workers, mandating proper informed-consent checklists, online publication of empanelled surgeons and Quality Assurance Committee details, and enhanced compensation for sterilisation failures and deaths. For disability law, Devika Biswas matters because coercive, target-driven sterilisation falls disproportionately on the poor, the rural, and the disabled. The judgment establishes that any sterilisation conducted without genuine, individualised informed consent violates Article 21 — a constitutional reinforcement of the statutory prohibition in Section 10(2) of the RPwD Act.

X v. NCT of Delhi: reproductive autonomy of every woman

The most recent pillar is X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi, 2022 SCC OnLine SC 1321, decided by D.Y. Chandrachud, A.S. Bopanna and J.B. Pardiwala, JJ., on 29 September 2022. The Court held that the right to reproductive autonomy, dignity and privacy under Article 21 entitles all women, regardless of marital status, to access safe and legal abortion up to 24 weeks under the Medical Termination of Pregnancy Act as amended in 2021. It purposively read Rule 3B of the MTP Rules so as not to exclude unmarried women.

Two features of the judgment bear on disability. First, the Court affirmed that reproductive autonomy is an intensely personal entitlement that the State and third parties cannot appropriate — a principle that applies with full force to disabled women, who have historically had their reproductive decisions made for them. Second, the judgment is part of the post-Puttaswamy privacy lineage; Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, recognised decisional autonomy over one's body, including reproductive choices, as a facet of the fundamental right to privacy. Together these decisions constitutionalise the value that Section 10 of the RPwD Act translates into a disability-specific statutory command.

The lineage is worth tracing because it shows reproductive autonomy hardening from a contested claim into settled doctrine. Suchita Srivastava (2009) located reproductive choice in personal liberty; Puttaswamy (2017) absorbed it into the newly recognised right to privacy, holding that decisions about one's body are at the core of informational and decisional self-determination; and X v. NCT of Delhi (2022) operationalised both by refusing to let marital status gate access to abortion. For disabled women, each step removes a layer of the paternalism that historically governed them — first the assumption that disability negates choice, then the assumption that the State or family may decide on their behalf, and finally the assumption that respectable social categories (marriage, family approval) are preconditions for autonomy. Section 10 of the RPwD Act sits at the confluence of these holdings, converting a constitutional value into an enforceable statutory entitlement backed by the penal provision in Section 92.

Decoding 'free and informed consent'

The operative standard in Section 10(2) is "free and informed consent." Each word does work. Consent means an actual decision by the person concerned. Informed requires that the person be given, in an accessible format, adequate information about the nature, purpose, risks, alternatives and irreversibility of the procedure — sterilisation being permanent, the informational threshold is high. Free means the consent must be voluntary, free of coercion, inducement, or institutional pressure; consent extracted as a condition of remaining in a shelter, or to placate a caregiver, is not free.

Critically, the consent must be the disabled person's own. The Act's general scheme permits support for decision-making — a person may take help to understand and communicate — but support is not substitution. A guardian appointed under Section 14 may assist with consonant decisions but cannot, for an adult, simply authorise sterilisation in the person's place where the person is capable of consenting with support. This reading harmonises Section 10 with the supported-decision-making philosophy and with the constitutional autonomy recognised in Suchita Srivastava. For the definitions that fix who counts as a "person with disability" for these purposes, see our chapter on definitions.

Section 92: the criminal backstop against forced abortion and sterilisation

Section 10 states the right; Section 92 polices its breach. Section 92 lists "offences of atrocities" against persons with disabilities. Clause (f) makes it an offence to perform, conduct or direct any medical procedure to be performed on a woman with disability which leads to or is likely to lead to termination of pregnancy without her express consent — except where the procedure is undertaken in severe cases of disability and with the opinion of a registered medical practitioner and the consent of the guardian of the woman with disability. Whoever commits an offence under Section 92 is punishable with imprisonment for a term which shall not be less than six months but which may extend to five years, and with fine.

Section 92(f) thus criminalises forced abortion and, by its concern with reproductive interference, complements the Section 10(2) prohibition on forced sterilisation. The narrow exception — severe disability, plus a registered medical practitioner's opinion, plus guardian consent — has drawn academic criticism for reintroducing a substituted-consent route in "severe" cases, arguably in tension with the autonomy thrust of Suchita Srivastava and the supported-decision-making model. For examiners, the safest formulation is: the default rule is the woman's express consent; the exception is genuinely residual and procedurally fenced.

It is instructive to map Section 92's structure precisely. The section opens with a list of conduct constituting "atrocities" — including, among others, intentional insult or intimidation with intent to humiliate a person with disability in public view, sexual exploitation, voluntarily causing hurt, and the reproductive-interference clause in (f) — and then prescribes a single graded punishment for any offence under the section: imprisonment of not less than six months extending to five years, together with fine. The fixed statutory minimum of six months is notable; it signals Parliament's intent that these offences not be treated as trivial or compoundable to a token sentence. For the reproductive-rights chapter, clause (f) is the operative limb: it transforms forced termination from a mere civil or ethical wrong into a cognisable criminal offence, giving the autonomy guarantee in Section 10 a hard enforcement edge that the 1995 Act conspicuously lacked.

Section 25 and the positive duty to provide reproductive healthcare

Section 10(1)'s information right is operationalised through Section 25 of the Act, which obliges the appropriate Government and local authorities to take measures to provide healthcare to persons with disabilities. Section 25 expressly includes the provision of sexual and reproductive healthcare, especially for women with disability. It also requires healthcare to be provided after taking the free and informed consent of the person with disability, and mandates barrier-free access in government and private hospitals and accessible health programmes.

The pairing of Section 10 and Section 25 reflects the Convention on the Rights of Persons with Disabilities (CRPD), which India ratified in October 2007. Article 23 CRPD requires States to respect the home and family life of disabled persons, including their right to decide freely on the number and spacing of children and to retain their fertility on an equal basis with others. Article 25 CRPD guarantees the same range and quality of health services, including sexual and reproductive health, as are provided to others. Section 10 is, in substance, the domestic enactment of these treaty obligations — a point worth flagging in any answer that asks about the international roots of the provision.

The treaty connection is not merely rhetorical. The 2016 Act was enacted expressly to give effect to the CRPD; its long title records that India ratified the Convention and that the legislation is made to give it effect. This matters for interpretation, because Section 10 should be read consistently with India's treaty commitments wherever its language permits. Article 23(1)(c) CRPD obliges States to ensure that persons with disabilities, including children, retain their fertility on an equal basis with others — language that directly informs the prohibition on non-consensual infertility procedures in Section 10(2). Article 25(a) requires the same range, quality and standard of free or affordable sexual and reproductive health services as provided to others, which maps onto the positive duties in Section 10(1) and Section 25. Where a court must choose between a reading of Section 10 that advances these treaty obligations and one that dilutes them, the interpretive presumption in favour of conformity with international law tilts towards the autonomy-protective construction.

The 'menstrual management' rationale and why it fails in law

A recurring justification for sterilising or performing hysterectomies on disabled women is "menstrual management" — the claim that the woman or her caregivers cannot cope with menstrual hygiene, or that menstruation exposes her to risk. After Section 10(2), this rationale cannot justify an infertility-inducing procedure absent the woman's own free and informed consent. The legislative judgment is that menstruation is not a disease to be surgically abolished, and that the inconvenience of caregivers is constitutionally irrelevant to a question of bodily integrity.

The autonomy logic of Suchita Srivastava reinforces this: if a woman with intellectual disability can, with support, form and express a view, the law must engage that view rather than substitute the institution's preference. Where genuine incapacity exists, the response contemplated by the modern framework is supported decision-making, accessible menstrual-hygiene support, and the least-restrictive measure — not irreversible surgery. This connects to the dignity and independence themes that run through the Act, introduced in our RPwD Act hub and the chapter on the right to equality and non-discrimination.

Interaction with the MTP Act and reproductive choice

The reproductive rights of disabled persons must be read with the Medical Termination of Pregnancy Act, 1971 (as amended in 2021). For an adult woman of sound mind, the MTP Act requires her own consent to terminate a pregnancy; for a "mentally ill" woman, the guardian's consent is contemplated. In Suchita Srivastava, the Supreme Court refused to extend the guardian-consent route to a woman with mild intellectual disability, precisely because she was not "mentally ill" and retained capacity to decide — underscoring that the MTP Act's guardian-consent provision is a narrow exception, not a general licence to override disabled women's choices.

After X v. NCT of Delhi, the reproductive-autonomy reading of the MTP framework is firmly constitutionalised: the choice to continue or terminate a pregnancy belongs to the woman. For a disabled woman, the combined effect of the MTP Act, Section 10 and Section 92(f) is that neither termination nor sterilisation may be imposed on her without her express, free and informed consent, save in the genuinely residual statutory exceptions. The default, in every reading, is autonomy.

A practical illustration helps. Suppose a 22-year-old woman with a mild intellectual disability, living with her parents, becomes pregnant and her parents seek to have the pregnancy terminated against her wishes. Under Suchita Srivastava, if she can — with support — understand and express that she wishes to continue, her choice prevails and the MTP Act's guardian-consent route does not displace it. A medical practitioner who proceeded to terminate against her express wish would expose himself to liability under Section 92(f) of the RPwD Act, the punishment for which runs from six months to five years' imprisonment with fine. Conversely, if the same woman wished to terminate, her own consent under the MTP Act suffices and X v. NCT of Delhi confirms her entitlement to a safe and legal abortion within the statutory limits. The throughline is that the law follows her decision in both directions — it neither forces continuation nor forces termination.

Supported decision-making and the consent paradox

Section 10 raises an apparent paradox: how can a person who needs support to make decisions give "free and informed consent"? The Act answers through its preference for limited guardianship and supported decision-making over plenary guardianship. Under Section 14, plenary guardianship is to be avoided; where a guardian is appointed, the goal is to support the disabled person to take legally binding decisions rather than to take decisions on their behalf. Section 13 likewise affirms the legal capacity of disabled persons to own and manage their affairs.

Applied to reproduction, this means the law presumes capacity and requires accommodations — accessible information, communication support, additional time — before concluding that a person cannot consent. Only genuine, demonstrated inability to consent, even with support, opens the door to the narrow guardian-consent exception in Section 92(f), and even then only for termination in severe cases with medical opinion, not for elective sterilisation. This is the same dignity-and-capacity principle examined across the Act; readers new to the statute should begin with the introduction for the overall scheme.

Critique: the gaps Section 10 leaves open

For all its advance, Section 10 is not without gaps that examiners and commentators flag. First, while Section 92(f) criminalises forced abortion, neither Section 10 nor Section 92 contains an equally explicit criminal sanction for forced sterilisation as such; the protection rests on Section 10(2)'s prohibition rather than a dedicated penal clause, leaving enforcement weaker. Critics, including the LSE Human Rights commentary on forced sterilisation in India, argue that this leaves a meaningful enforcement gap.

Second, the "severe cases of disability" exception in Section 92(f) reintroduces guardian consent for termination, which sits uneasily with the autonomy model of Suchita Srivastava and the CRPD's supported-decision-making philosophy. Third, the Act does not exhaustively define the procedural safeguards (independent review, judicial oversight) that should attend any third-party-authorised procedure, leaving room for the very paternalism the Act sought to displace. The Mental Healthcare Act, 2017, partly fills this by prohibiting sterilisation of persons with mental illness as a treatment for that illness, but the disability-specific framework still relies heavily on the constitutional baseline supplied by Suchita Srivastava, Devika Biswas and X v. NCT of Delhi.

Exam takeaways: how to write Section 10 in a mains answer

A high-scoring answer on reproductive rights of persons with disabilities should be built in layers. Open with the text of Section 10 — the dual positive (information) and negative (no forced infertility) obligations. State the operative standard: the disabled person's own free and informed consent, not a guardian's. Then constitutionalise it: reproductive choice is personal liberty under Article 21 (Suchita Srivastava); reproductive health and coercion-free sterilisation are Article 21 rights (Devika Biswas); reproductive autonomy belongs to every woman regardless of status (X v. NCT of Delhi); and decisional autonomy over the body is a privacy right (Puttaswamy).

Next, add the criminal backstop — Section 92(f) and its six-month-to-five-year punishment for forced termination — and the positive healthcare duty in Section 25. Locate the provision in the CRPD (Articles 23 and 25). Finally, demonstrate critical awareness by noting the enforcement gap on forced sterilisation and the contested "severe cases" exception. This structure — text, principle, authority, enforcement, critique — converts a short statutory provision into a full-marks answer. For adjacent topics likely to be examined together, revise the rights and entitlements and recognised disabilities chapters.