The Supreme Court, earlier this week, presented a judgment which was win-win for both the petitioner as well as the judiciary — the petitioner made a case for termination of pregnancy beyond the permissible limit, and the judiciary accommodated the argument. The court observed that “a woman has a sacrosanct right to her bodily integrity and it's her choice” while delivering a judgment on the Medical Termination of Pregnancy (MTP) Act.
The court permitted a Kolkata-based woman, who is in her 26th week of pregnancy, to abort her foetus and terminate her pregnancy because the foetus is suffering from severe cardiac ailments. The woman had approached the court when she was in her 23rd week of pregnancy.
The bench consisting of Justices Dipak Misra and M Khanwilkar ruled in favour of the woman stating that the termination of pregnancy should be carried out “forthwith” at the SSKM Hospital in Kolkata. Justices Misra and Khanwilkar have been prudent, understanding the life of the foetus after birth, and the mental, physical and emotional anguish of the mother.
The MTP Act does not allow abortion if the foetus is over 20 weeks old, and exceptions to this rule include grave danger to the mother or the baby. The bench perused the report of the medical board and the SSKM hospital, and following its recommendation, ruled in favour of the exception. The petitioner had claimed that the unreasonable restriction of 20 weeks on abortion under the MTP Act had caused her grave mental and physical anguish. It was in May during a fetal echo-cardiography that the petitioner discovered that her foetus suffered from Tetralogy of Fallot, a combination of four heart impairments. The medical board stated that the foetus, if carried to full-term and born, would have to undergo several “complex” medical procedures and that its chances of survival were immensely low. The court followed the recommendations of the board stating that this as a “special case” and would cause mental injury to the mother in case the MTP was not carried out — “it is clear as crystal that the medical board is of the view that there is a case for termination of pregnancy as a special case…”
The petitioner also challenged the constitutional validity of Section 3 (2) (b) of the MTP Act, which restricts the period of termination of pregnancy to 20 weeks. Section 5 of the Act allows for an exception and allows for abortion after the permissible 20 weeks in case it “is immediately necessary to save the life of the pregnant woman.”
Many are not aware of the access to medical termination of pregnancy or abortion. The Ministry of Health and Family Welfare conducted a survey in 2007 that suggested that only 22.9 percent of men, and 28 percent of women were aware that medical abortions are possible and accessible. The MTP Act allows for termination of pregnancy up to 12 weeks with the approval of one medical practitioner, and beyond 12 weeks to 20 weeks with the approval of two registered medical practitioners, who are of the opinion, in good faith, that the continuance of pregnancy will cause grave injury to the physical or mental well-being of the pregnant woman, or if there’s substantial risk to the child’s life. However, the MTP Act does not allow for abortions at the request of the mother — a grave risk to the mother’s or the foetus’ life is a necessary condition for the invoking of provisions of the MTP Act.
There have been several instances wherein the constitutional validity of the MTP Act and its provisions have been debated. Earlier this year, the Supreme Court rejected the plea of a 37-year-old woman who wanted to abort her 26-week foetus that showed signs of Down’s Syndrome — the court made a strict and pedantic reading of the MTP Act, empathising that while they know that the child, when born, might suffer from mental and physical challenges, they were bound by the law — “It is sad that the child may suffer from physical and mental challenges and it’s unfortunate for the mother but we can’t allow an abortion. We have a life in our hands and we are also tied down by a law.”
In 2008, the Bombay High Court rejected the petition of a woman to abort her 26-week foetus, who showed signs of a congenital heart defect. The court stated that it could not read down Section 5 of the Act as it would amount to usurping the power of the legislature. In R v. Haryana, the Punjab and Haryana High Court denied the petitioner — a rape survivor — permission to terminate her 25 week foetus as the medical board did not recommend such an action. During the course of the proceedings of this case, the petitioner gave birth to a baby born out of sexual assault.
However, what is not dealt with in the present judgment is the accommodation of women’s consent and agency, irrespective of the situation of grave danger to the life of the pregnant woman or her foetus. In the debate between the right to life of the unborn child versus the right to life of the pregnant woman, the concept of liberty and agency of the woman is not deliberated.
In the United States of America, there is a pertinent debate between pro-life and pro-choice activists, but in India, the current legislation does not allow for a pro-choice argument. The concept of consent is diluted in conversations about procedure and recommendations on substantial risk to life (of the mother or the foetus). The MTP Act is 45 years old, and despite several suggestions, has not yet gone through amendments. A draft Medical Termination of Pregnancy (Amendment) Bill, 2014 by the Ministry of Health provides for termination of pregnancy beyond 20 weeks — to 24 weeks —, under certain stipulated conditions. However, it has been reported that this Bill was delayed. Until the Bill moves through the labyrinthe of the legislature, fundamental rights will continue to be violated by the MTP Act and the judiciary shall persist to make decisions on this issue without adequate care about women’s liberty and agency.
Published Date: Jul 04, 2017 22:17 PM | Updated Date: Jul 04, 2017 22:17 PM