Synthesis Theorisation

Finding a space for reproductive rights within constitutions that are silent on them has been a perennial challenge. Most common responses fall into one of three categories. First, reading them into the right to privacy (or liberty). Second, and more recently, eschewing privacy and turning to the right to equality. And third, and most comprehensively, adding or combining privacy and equality. I argue that while rights addition avoids the need to choose between privacy and equality in framing reproductive rights, it falls short of capturing the intertwined lived reality of rights infringement. I source from within Indian constitutional law a fourth alternative: a method of rights analysis that responds to this reality, called rights synthesis. The synthesis however remains underdeveloped and underused within Indian constitutional doctrine. To theorise it, I turn to international human rights law (‘IHRL’). Drawing upon the overall framing of mutually supporting relationships between rights within IHRL but distinguishing the synthesis from existing categories of such relationships, I define the synthesis as involving permeability, interaction and dynamism. I distill the contributions of the synthesis within the experiential, conceptual and adjudicative registers to conclude that the synthesis enhances the protection of constitutional reproductive rights while offering insights for broader human rights analysis, in India and beyond.