The Supreme Court on July 15, 2019, issued a notice to the Centre to seek its response on public interest litigation (PIL), filed by three women, which demands decriminalising abortion.
A bench headed by Chief Justice of India, Ranjan Gogoi sought the Centre’s response on the PIL, saying provisions like sections 3(2)(a) and 3(2)(b) of the MTPA be declared as void and unconstitutional on the ground that they are in violation of the fundamental rights of women.
The PIL challenges the law that makes abortion permissible only in extra-ordinary circumstances. As per the petition, the restrictions and exceptions in the Medical Termination of Pregnancy Act (MTPA), 1971, violate women’s rights, as a provision of the act mandates that the opinion of a registered medical practitioner be sought to terminate pregnancy, and abortion after 20 weeks can be allowed only if continuation of the pregnancy poses a threat to the mother’s life. This violates the women’s right to health, reproductive choice, and privacy.
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The petitioners contended, “The right to exercise reproductive choice is the right to choose whether to conceive and carry pregnancy to its full term or to terminate it at the core of one’s privacy, dignity, personal autonomy, bodily integrity, self-determination, and right to health recognised by Article 21 of the Constitution. The state cannot compel a woman to continue a pregnancy against her will when continuance of pregnancy will entail physical, mental, and socio-economic consequences which far outweigh the consequences that ensue as a result of termination of pregnancy.”
The petitioners demand that any reproductive choices made by a woman in the first trimester (up to 12 weeks of pregnancy) must get complete protection from laws. The ‘harsh restrictions’ under sections 3 (2)(a), 3(2)(b), explanation 3 to section 3(2), sections 3(4)(a), 3(4), and 5 are discriminatory and violative of personal liberty and bodily autonomy and hence must be done away with.
As of now, Section 3 of the act allows for pregnancy up to 12 weeks to be terminated by a registered medical practitioner, if he/ she believes the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of serious injury to her physical or mental health. For pregnancies between 12 and 20 weeks, termination requires the same opinion from two registered medical practitioners. Section 5 allows the termination of pregnancy exceeding 20 weeks only in cases of immediate risk to life.
The petitioners also argued that the MTP Act has not kept up with the changing times, when medical technology has seen great advances. There is, therefore, an urgent need to amend the act. Also, the fact that India lacks a systematic diagnostic infrastructure, especially in rural areas, complications in advanced stages of pregnancy or any change in the physical/ mental/ socio-economic situation of the pregnant woman, the restriction of 20 weeks is rather stringent when safe abortion is possible as late as 26 weeks.
The Medical Termination of Pregnancy (Amendment) Bill 2014 and Medical Termination of Pregnancy (Amendment) Bill 2017 also proposed to enhance the cap for the termination of pregnancy to 24 weeks. This is because several genuine cases have been coming up where serious risk of abnormalities in the foetus were noticed only after the 20-week period.
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Discriminatory Law The law was also criticised for being discriminatory to certain groups like single women, minors, and mentally ill persons. The petition said the law adversely affects the sexual autonomy of single women. While it protects married women by allowing them to terminate an unplanned and unwanted pregnancy, the same is not applicable to single woman. It was also pointed out that the act does not allow abortion in the case of pregnant minors or mentally ill persons without the consent of the guardian. As a result of this provision, the guardian has complete autonomy over such persons.
In July 2019, a Delhi High Court bench of Chief Justice D.N. Patel and Justice C.H. Shankar permitted a woman to abort her 25-week-old foetus as it might not have survived due to enlarged kidneys.
The court had asked AIIMS to set up a board to examine the health of the foetus and the mother and submit a report. Subsequently, it was decided that the woman would be allowed to abort.
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On July 28, 2017, the Supreme Court of India disallowed the abortion of a 32-week-old foetus carried by a 10-year-old rape survivor in Chandigarh who had been repeatedly raped by her maternal uncle over several months. Her parents came to know of the crime only after the pregnancy had progressed beyond 20 weeks.
Since the 1971 Medical Termination of Pregnancy (MTP) Act requires court approval for aborting a foetus that is more than 20 weeks old, the girl’s family approached the district court, which turned down their request and then the Chandigarh high court too rejected their plea.
By the time the case reached the Supreme Court, the foetus was 26 weeks old and the medical board appointed for the task took another month to give its report. However, in week 32, the SC said ‘no’ to abortion and the girl had to give birth through a C-section.
It’s been 3 years since this case and still there is not much clarity in our abortion laws with the result that access to abortion rights and services remains affected by many hurdles.
There is a need to amend the MTP Act, keeping pace with modern medicine. By the time a woman learns about abnormalities in the foetus she is carrying, and takes the difficult decision of aborting it, her pregnancy has gone past the 20 weeks’ cut-off permitted by the MTP Act. Today, abortion can be safely induced mimicking a natural delivery at any stage. Yet a doctor has no option but to refuse such an abortion if the pregnancy is over 20 weeks, fearing litigation. Many a time, this forces a woman to undergo illegal abortion in the hands of a quack, thereby putting her life at risk.
Even when a woman approaches a medical facility in time, she can never be certain of finding a willing service provider. The problem is because of the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994, which was enacted to curb sex-selective abortion, owing to increased cases of female foeticide. In the case of a minor, access to safe abortion is fraught with yet more obstacles. Under amendments to the Protection of Children from Sexual Offences (POCSO) Act, 2012, any case of pregnancy in a minor must be reported to the police before it can be terminated legally, as sex with a minor is a criminal offence even if the act has been consensual.
Unfortunately, this causes parents of a minor girl who is pregnant to keep the matter under wraps, for fear of shame and ridicule, and choose an illegal abortion instead, as they find safety in anonymity.
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