From Freud to Maslow, it has been firmly established that sexuality is a basic physiological need for all humans irrespective of race, creed, or disability. Similarly, pursuing romantic relationships and reproductive rights are facets of the human condition that cannot be ignored. Drawing the line between who has the right to exercise their sexuality and form relationships and who does not, simply based on physical or mental impairments, is an ableist exercise. This intersection of disability and sexual intimacy has been a bone of contention due to social taboo. Apart from education, healthcare, and equal opportunities for Persons with Disabilities, which are of vital importance, physical intimacy and the actualization of ‘sexual citizenship’ are consequential to their lives as well. International human rights law has affirmed that everyone has the right to control and decide freely on matters related to their sexuality. Why should Persons with Disabilities not come under this ambit? This post will explore the existing global norms and jurisdictions on the subject, the Indian perspective, and the reforms needed.
The What and Why
The term ‘sexual rights’, for this post, will be interpreted to be the rights to engage in consensual sexual intercourse, to have romantic/sexual partners, to marry people of their choice, and to bear children if they wish to. These rights include but are not limited to the freedom from harassment while expressing one’s sexuality, the freedom to access sexual healthcare and information, the freedom to choose and marry individuals of their liking, etc. These are not exhaustive, and the blanket term used is to be interpreted in a broad commonsensical manner to the issues raised and solutions proposed.
The right to exercise one’s sexuality consensually and freely, have sexual relations, and form marital relationships are liberties often taken for granted by abled persons. Public discourse on these topics has led to them being some of the most basic rights that human beings can enjoy. Nevertheless, when it comes to Persons with Disabilities, their humanity is disregarded or, worse, trivialised.
Individuals with cognitive disabilities often encounter stereotypes concerning their sexuality, such as being treated as childlike and perceived as lacking sexual desires (or, in certain cases, viewed as excessively sexual). They may also face assumptions that they cannot reproduce or are unsuitable for sexual relationships, marriage, and parenthood. Consequently, their sexual and reproductive health and rights are frequently ignored, with health systems failing to prioritise these crucial aspects. According to the International Women’s Health Coalition’s report, the rights in question are indispensable because:
“Sexual rights are a fundamental element of human rights. They encompass the right to experience pleasurable sexuality, which is essential in and of itself and, at the same time, is a fundamental vehicle of communication and love between people.”
The Rights to Equality, Liberty, and Autonomy are the underlying bedrock that allows an overwhelming majority of the population to enjoy their liberties to sex and marriage on autopilot. However, it is still out of reach for persons with physical and mental disabilities simply by the virtues of inadequate legislation, apathetic lawmakers, and a lack of fundamental comprehension of the issue.
Existing Framework: Blandishments or Impetus for Betterment?
In 1993, the General Assembly adopted the United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities. Although not a legally binding agreement, this document was the first to address the rights of disabled individuals to engage in sexual relationships, marry, and birth children. As per the Rules, governments must undertake the following:
“…promote the full participation of persons with disabilities in
family life. They should promote their right to personal integrity and ensure
that laws do not discriminate against persons with disabilities with respect
to sexual relationships, marriage, and parenthood.”
This international undertaking and similar national policies implemented have been successful in Europe. The Danish system of seksualvejledere allows people to pursue diploma programs to become sexual advisors and work with adults with disabilities to help facilitate their access to erotic life. In the Netherlands, there are professionals who care for the disabled are essentially trained prostitutes that provide sexual attention to those with physical and mental disabilities. The Germans, too, have private organisations that strive to meet the sexual needs of its disabled population.
These advancements mask the developmental disparities in the realm of sexual rights in the world at large. Even the most recent instrument addressing the matter, the 2006 United Nations Convention on the Rights of Persons with Disabilities (UNCRPWD), does not explicitly provide for PWDs’ right to sexual intimacy or marriage and family lives, rather raises concerns for the sexual and reproductive health of this section of society, which is laudable but not perfect either.
Can They Say Yes?
Consent is vital for societal activities and access rights, but persons with cognitive disabilities cannot provide it as they struggle with processing information and making reasonable decisions.
In light of this, India prevents individuals with cognitive disabilities from participating in legally binding contracts, as outlined in §12 of the Indian Contract Act, among other restrictions in rights. The lone and insufficient remedy to this curtailment is appointing a guardian under The Guardians and Wards Act, 1890, to supplement the consent of these individuals through a designated individual who acts in their best interests. However, the framework for these guardians to provide consent on behalf of these individuals when engaging in activities like sexual intercourse and marriage is not in place. The Supreme Court judgment of Suchita Srivastava vs. Chandigarh Administration screams this lack of a framework. In this case, the courts held with respect to the consent of a mentally disabled woman that,
“… a guardian can make decisions on behalf of a ‘mentally ill person’ … the same cannot be done on behalf of a person who is in a condition of ‘mental retardation’.”
Ironically, the judiciary does permit the consent of a person with a mental disability when they want to exercise their reproductive choice. However, legislations such as the Hindu Marriage Act of 1955 and the Special Marriage Act of 1954 do not allow marriages involving PWDs to be considered solemnized.
The capacity to give consent is closely linked to the soundness of one’s mind and the courts assess it on a case-by-case basis. The judiciary considers the specific facts and the individual’s condition to determine whether they are aware of the nature of the act and its consequences. Based on this awareness, it establishes whether the act was voluntary. Thus, if an individual performs an act with an understanding of its nature, it is deemed voluntary, and the court holds the person accountable for any resulting actions. Given that the court acknowledges various distinctions in holding such individuals liable, it should also establish an adequate framework for them to engage in activities requiring consent. Unfortunately, the Indian Government does not provide such a framework to regulate the capacities of individuals with cognitive disabilities. Yet, it imposes a blanket requirement of consent that is challenging to ascertain for these persons.
India: Legislative Scenario and Suggested Reforms
The Rights of Persons with Disabilities Act, 2016, was enacted as a special statute to give domestic effect to the United Nations Convention on the Rights of Persons with Disabilities. However, other than the references made to the promotion of sexual and reproductive healthcare for women with disabilities and punishment for sexual assault, there is no mention or implication of promoting or fostering services provided for the sexual needs, romantic pursuits, or reproductive rights of PWDs.
As discussed earlier, the Special Marriage Act specifies that a special marriage can be permissible only if neither party is incapable of giving valid consent to it as a consequence of unsoundness of mind or be “suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children”. The same provision is mirrored in the Hindu Marriage Act. This clause is inherently problematic as it only provides grounds to declare someone “unfit” for marriage but does not provide grounds to ascertain who would be considered “fit” for marriage!
Considering these lacunae in policies, exclusionary laws, and lack of state machinery, the authors are of the opinion that an update of the Standard Rules and UNCRPWD emphasizing the need for all nations to handle this issue with care and concern is a compelling necessity. In the matter of consent the Indian Government must address the issue through amendments. It is pertinent to note that the Parliament should issue rules and regulations on the subject, as it is empowered to do so under §100 of the RPWD Act. The State should fund initiatives involving women and men with disabilities to provide them with inclusive and accessible education, information, and services catering to their reproductive and sexual health requirements. Thus, a mechanism to profess sexual citizenship by PWDs is the need of the hour.
The Authors, Rajnandan Gadhi and Joshua Joseph Jose, are 2nd year law students at National University of Advanced Legal Studies, Kochi.