Reproductive Autonomy and Disability: Legal Barriers, Ethical Dilemmas, and the Case for Supported Decision-Making
From Paternalism to Autonomy: Challenging Substituted Decision-Making in India's Guardianship and Healthcare Regimes
ABSTRACT
This paper examines the multifaceted challenges at the crossroads of disability and reproductive rights in the Indian context, specifically looking at institutional inhibitions that limit the choice and agency of women with disabilities, particularly women with intellectual and psychosocial disabilities. Despite institutional safeguards under Article 21 of the Constitution of India, which grounds the right to life and personal liberty, and the obligations found under Articles 12 and 23 of the Convention on the Rights of Persons with Disabilities (CRPD), people with disabilities are confronted with considerable legal, ethical and social challenges to exercising their reproductive rights.
This can include non-consensual sterilizations that are perceived to be justified within guardianship regimes or through considered medical necessity, limited access to reproductive healthcare (e.g., 30% fewer disabled women in rural areas accessing contraceptive services), and pervasive cultural stigmas to acknowledge their right to sexuality and parenthood - especially for women who belong to marginalized communities such as Scheduled Castes and Scheduled Tribes.
Through the lens of some landmark judicial decisions as the basis to engage empirical evidence from the National Family Health Survey (NFHS-5) and the Disability Rights India Foundation to critique the ongoing capacity for substituted decision-making and structural ableism within legal and medical structures, this paper will lay clear the extent that women’s reproductive rights are continually lacking through reducing rights that seem to guarantee access.
The chapter juxtaposes the medical model of disability, which often results in paternalistic responses, with a social model focused on dismantling impediments within society to promote autonomy. Supported decision-making models that reflect the recommendations from CRPD are proposed as a model that would help individuals with disabilities to make informed reproductive decisions with appropriate support.
Recommended changes include amendments to the 2016 Rights of Persons with Disabilities Act, which would prohibit sterilisation without consent, introduce a process for capacity assessments, and reform guardianship legislation to provide primacy to the individual’s will and preferences.
Moreover, by centring reproduction justice work produced by Black and Indigenous feminists, the chapter draws attention to the inter-sectional impacts of disability and gender and race and class to push for an integral approach to afford universal and expansive reproductive justice. Ultimately, the chapter contends that dignity, autonomy and equality are not abstract visions but living entitlements that require urgent, systemic legal and cultural change, which disrupts colonial histories of exclusion and eugenics.
The Intersection of Disability and Reproductive Rights
Reproductive rights are recognised as a subset of inalienable human rights, among them the right of individuals to make freely and responsibly decisions about reproduction, including access to contraception, assisted reproduction therapy, pregnancy care, and to bear or not to bear children. However, for persons with disabilities, particularly women and those with intellectual or psychosocial disabilities, these rights have been systematically restricted in the name of protection, public interest, or medical necessity. Disabled women from Scheduled Castes or Tribes, for example, encounter additional layers of discrimination, and the stigma related to caste exacerbates their challenges in accessing reproductive healthcare. Nearly 30% fewer disabled women living in rural areas accessed contraceptive services compared to other women.[1]
In the past, people with disabilities were institutionalised, forcibly sterilised, and removed from family life because they were deemed “unfit” to be parents. The eugenics movements of the 19th and 20th centuries actively endorsed such exclusionary narratives, with many jurisdictions legislating compulsory sterilisations, primarily targeting individuals with cognitive or psychiatric disabilities.[2]
Although such policies have widely been discredited, structural ableism to inform legal and medical frameworks continues to influence reproductive autonomy today.
A key distinction must be made between the medical and the social model of disability. While the former interprets disability as an impairment to be corrected or accommodated, often leading to paternalistic control over the body, the latter understands disability as a product of social barriers and discrimination that hinder access by individuals to social life, including reproduction. To take the social model, for example, it critiques healthcare barriers because of inaccessible facilities or prejudiced medical advice that limit reproductive choice, similar to how it critiques the medical model for the idea of “fixing” someone who is disabled.
In policy and law, such models significantly shape whether disabled individuals are given reproductive autonomy or subjected to protective limitations. In this context, reproductive justice frameworks, developed by Black and Indigenous feminists, emphasise the intersections of disability, race, gender, and class, and how state power over oppressed bodies disproportionately burdens women with disabilities.[3] Recognition of these intersectional barriers is essential to making reproductive rights universal and inclusive.
Legal Frameworks of Reproductive Rights and Disability
The complex interplay of social bias, individual decision-making power, and state protection characterises the legal regulation of reproductive rights involving disabilities. Although both international and national law recognise the right of people with disabilities to control their reproductive lives, the actual application of these rights typically reflects antiquated medical and paternalistic beliefs. Internationally, the Convention on the Rights of Persons with Disabilities (CRPD) ensures self-determination in reproductive choices and the right to family life.[4] Article 23 of the CRPD prohibits discrimination against individuals with disabilities on the grounds of marriage, fertility, and parenthood, and Article 12 ensures equal recognition before the law.[5] Nevertheless, even after ratification, states do not operationalise the aforesaid rights to the extent that when disabilities are viewed as impairing decision-making capacity, states fail to provide these rights. Indian law constitutionally guards reproductive liberty. The Rights of Persons with Disabilities Act, 2016, recognises healthcare as a right and prohibits discrimination, but does not exclude sterilisation or other reproductive procedures without consent. [6]
In Suchita Srivastava v Chandigarh Administration, the Supreme Court brought to focus that the options in reproduction fall under Article 21 of the Constitution, and that individuals with mental disabilities cannot be assumed to lack capacity.[7] However, reconciling judgments points to judicial hesitation, especially when mental capacity is involved.
In Gaurav Jain v Union of India, the Supreme Court was concerned for marginalised women. Still, one might criticise that this becomes moral paternalism, curtailing bodily agency in the name of welfare.[8] The Supreme Court of Canada, on the other hand, ruled in Eve v. Eve that a woman with an intellectual disability could not be sterilised against her will unless there was an apparent necessity and no less invasive option.[9]
Despite not having a consistent scrutiny standard, Indian courts have relied on these precedents.
The call for supported decision-making models instead of substituted decision-making is increasingly accepted within disability rights scholarship. Institutions of the law still struggle with the dilemma between protection and control, particularly when family members or guardians attempt to interfere with reproductive issues. Having established the legal frameworks, we now examine sterilisation as a critical issue affecting reproductive agency.
Sterilisation, Consent, and the Problem of Substituted Decision-Making
The sterilisation of people with disabilities remains perhaps the most controversial aspect of reproductive health legislation. Although doctors and family members might avail themselves of convenience or welfare justification, the practice poses deep questions regarding body control, consent, and state or guardian control limits. A 2018 study by the Disability Rights India Foundation reported that 15% of women with intellectual disabilities in urban India faced non-consensual sterilisation, often under guardianship orders.[10]
Historically, parens patriae gave the state the authority to intrude upon the lives of those deemed incapable of making their own choices. That heritage, rooted in eugenic interventions, continues to shape attitudes towards the sterilisation of people with intellectual or psychosocial disabilities. Although modern law increasingly enshrines a right of informed consent, in practice, substituted decision-making is often substituted for individual autonomy, particularly where guardianship regimes apply.
Indian law has attempted to place agency in the centre of reproductive choice-making. In Suchita Srivastava v Chandigarh Administration, the Supreme Court held that reproductive choices are included within the scope of personal freedom under Article 21 of the Constitution.[11] The Court emphasised that a person with mild intellectual disabilities can make decisions on pregnancy, and consent must be accorded respect.
However, subsequent judgments have revealed the inadequacies of applying this reasoning uniformly. In Re: F, a sterilisation case of a woman with an intellectual disability, a trial court permitted the procedure at the insistence of guardians despite ambiguous evidence of need or the individual’s will.[12] Even though poorly publicised, such judgments reflect a broader problem: courts gravitate towards substituted decision-making rather than attempting supported decision-making methods espoused by the CRPD.
Despite the international trend towards self-determination, substituted decision-making persists due to evolving legal standards, stigma, and practical difficulties of ascertaining capacity. The legislatures and courts have moved slowly to leave clear procedural safeguards around reproductive decision-making, and individuals with disabilities remain vulnerable to irreversible interventions that do not necessarily mirror their valid will or preference.
So, the case is not just about consent but about whose opinion counts in reproductive health decisions. Ensuring that people with disabilities can get what they require and have the assistance to make their own decisions is not just a legal requirement; it is an ethical one.
Guardianship, Mental Capacity, and the Right to Parenthood
The right to parenthood is a fundamental human right, but individuals with disabilities, particularly those under guardianship, can frequently find themselves structurally restricted from exercising it. In India, guardianship legislation still embodies a model of substituted decision-making, wherein the person is assumed to be unable to make legal decisions, including those involving marriage, adoption, or child-rearing.
This method contradicts Article 12 of the CRPD, which confirms that individuals with disabilities have legal capacity on the same terms as others.[13] The Indian Constitution also protects an individual’s right to life and liberty under Article 21, including the right to family life.[14] But these rights are often superseded by guardians or state powers in the interest of welfare.
The courts have been inconsistent in their approaches. In XYZ v Union of India, the Bombay High Court recognised that disability alone cannot form the ground for refusing parenthood.[15] However, in some other cases, the courts have declined adoption rights based on presumptions regarding a disabled individual’s capability to take care of a child.
Internationally, rulings such as Eve v Eve have emphasised the role of consent and autonomy, upholding against non-therapeutic interventions or reproduction restrictions without assent from the individual.[16] India’s Mental Healthcare Act, 2017, makes supported decision-making available in the context of treatment, but the same model has not yet been applied in family law.[17]
Although Indian legislation continues to emphasise substituted decision-making under guardianship laws primarily, this runs directly counter to the obligations arising out of Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD), which recognises persons with disabilities as having equal recognition as persons before the law and obliges states to provide the assistance required to facilitate the exercise of legal capacity.[18]
At times, the Indian Supreme Court has utilised these principles – for instance, in Suchita Srivastava v Chandigarh Administration, where the right to reproductive choice was framed within Article 21 of the Constitution.[19] The courts remain inconsistent, nevertheless, often delegating reproductive, marital, or parental decision-making to guardians or state authorities rather than individuals. Without a correspondence to the CRPD in legislation to place an explicit presumption of capacity at its centre, persons with disabilities will remain highly susceptible to being subjected to decisions made in the “best interest” of the person, but not in the actual expression of decision-making.
Until legal frameworks evolve into a presumption of capacity, people with disabilities will remain excluded from equal access to parenthood. Reform should be based on assistance, not replacement, and should be focused on ensuring that fair treatment is meted out to the population with mental disabilities.
Sexuality and Marriage Rights: Cultural Barriers and Legal Gaps
Individuals with disability usually encounter stereotypes in society that dismiss their right to marry and their sexuality. Despite Article 23 of the CRPD, which promotes their right to marry and establish a family, Indian law provides minimal protection.[20] The constitutional right to marry established under Article 21 is not uniformly applied, particularly when guardianship or mental disability is involved, leading to the infringement of the very bedrock of the constitution.[21] Cultural norms, such as the stigmatisation of disabled women’s sexuality in rural India, often lead to family-led restrictions on marriage, with 60% of disabled women reporting social pressure against forming relationships.[22]
In Suchita Srivastava v Chandigarh Administration, the Supreme Court affirmed reproductive agency for women with mild intellectual disabilities as well, and insisted on individual consent.[23] Nevertheless, most courts continue to withhold marriage and reproductive rights because of a presumption of incapacity and not ability.
Solution to such problems demands legal reforms and cultural transformation in respect of the dignity and control of individuals with disabilities, recognising their full spectrum of human experiences, including family life and sexuality.
Policy Reforms: Towards Supported Autonomy
For meaningful reproductive autonomy of persons with disabilities in India, intentional legislative and judicial reforms need to take place. First, disability laws must explicitly prohibit non-consensual sterilisation and other surgical interventions that cannot be reversed. Second, family law should move towards frameworks incorporating supported decision-making, allowing individuals to marry, adopt and parent with the necessary support rather than complete restrictions. Third, guardianship provisions must show a presumption of capacity instead of a presumption of incapacity, which can work alongside mechanisms like peer support networks, state-appointed facilitators, and review processes to avoid indefinite control. Finally, courts must establish procedural standards that prioritise an individual’s will and preferences, even in a questionable capacity. If implemented, these reforms would mark a clear and decisive transition from paternalistic protection towards an inclusive model that is dignified, autonomous, and equitable.
Conclusion
Although India’s Constitution and the CRPD enshrine the rights and dignity of disabled persons, legislative gaps persist regarding guardianship, reproductive freedom, and family life. Such iconic cases as Suchita Srivastava have developed more recognition of the decision-making power of disabled people, but cultural and legislative obstacles continue. In the future, reforms need to advance supported decision-making and respect for autonomy, so that persons with disabilities can exercise their rights fully with dignity and equality.
India is currently at a crucial crossroads. The rights protected by the Constitution and recognised in the CRPD cannot be empty statements if courts and legislatures still accept non-consensual substituted decision-making in fundamentally intimate decisions such as reproduction, marriage, and parenting decisions. Accepting this current state of affairs means accepting a system where autonomy is conditional and equality is deferred. Moving forward requires more than courts hesitating or providing limited protection; legislative change prohibiting non-consensual sterilisation, alternative decision-making appointments that turn into supported decision-making, and an assumption of capacity embedded into family and disability law.
Dignity and autonomy are not abstract ideas; they are lived entitlements that determine whether persons with disabilities can make choices regarding their bodies, relationships, and futures. A society that denies these entitlements perpetuates the historical legacy of exclusion and eugenics under a different name. In contrast, a culture that affirms them demonstrates its commitment to meaningful equality, and India must commit itself to the latter. Only then can reproductive rights be actualised universally and inclusively, reflecting liberty’s constitutional promise.
Sources
[1] Ministry of Health and Family Welfare, National Family Health Survey (NFHS-5) 2019–21: Compendium of Fact Sheets for India and 14 States/UTs (Phase II) (Government of India 2021). <https://mohfw.gov.in/sites/default/files/NFHS-5_Phase-II_0.pdf> accessed 27 September 2025.
[2] National Human Genome Research Institute, Eugenics and Scientific Racism (18 May 2022) <www.genome.gov/about-genomics/fact-sheets/Eugenics-and-Scientific-Racism> accessed 27 September 2025.
[3] Vuyisile Msila, ‘Indigenous Feminism and Black Women Leadership’ (2021) 9(4) Sociology and Anthropology 4251<www.researchgate.net/publication/358461004_Indigenous_Feminism_and_Black_Women_Leadership>accessed 27 September 2025.
[4] United Nations, Convention on the Rights of Persons with Disabilities, UN Doc A/RES/61/106 (2006) <www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html>accessed 27 September 2025.
[5] United Nations, Convention on the Rights of Persons with Disabilities, UN Doc A/RES/61/106 (2006) arts 12, 23.
[6] The Rights of Persons with Disabilities Act, 2016.
[7] Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1.
[8] Gaurav Jain v Union of India (1997) 8 SCC 114.
[9] E (Mrs) v Eve, [1986] 2 S.C.R. 388.
[10] Sundarnag Ganjekar et al, ‘Reproductive Rights of Women with Intellectual Disability in India’ (2023) 8(1) Indian J Med Ethics 53 <https://ijme.in/wp-content/uploads/2022/07/Reproductive%20Rights_53.pdf> accessed 27 September 2025.
[11] n [7].
[12] Re: F [1990] 2 AC 1.
[13] United Nations, Convention on the Rights of Persons with Disabilities, UN Doc A/RES/61/106 (2006) art 12.
[14] Constitution of India 1950, art 21.
[15] XYZ v Union of India (2024) 9 SCC 114.
[16] n [9].
[17] The Mental Health Act, 2017.
[18] n [13].
[19] n [7].
[20] United Nations, Convention on the Rights of Persons with Disabilities, UN Doc A/RES/61/106 (2006) art 23.
[21] n [14].
[22] N Janardhana et al, ‘Discrimination against differently abled children among rural communities in India: Need for action’ (2015) 6(1) Journal of Natural Science, Biology and Medicine 7–11 <https://pmc.ncbi.nlm.nih.gov/articles/PMC4367071/> accessed 27 September 2025.
[23] n [7].