In what could have been deemed a landmark case on abortion laws, the Supreme Court, on Tuesday, rejected the plea of a 37-year-old woman to abort a 26-week-old foetus that showed signs of Down’s Syndrome. When the plea came to the Bench, the foetus was 23 weeks old; the Supreme Court ruled in the case that since there was no danger or threat to the life of the woman, the pregnancy was to continue. A court-appointed medical board had advised against the abortion.
According to the Medical Termination of Pregnancy Act of 1971 (MTPA), the permissible limit to terminate a pregnancy is 20 weeks. In cases, where the life of mother or child is in danger, this limit can be extended after considering the report of a medical board. In the present case, the Bench consisting of Justices SA Bobde and L Nageswara Rao, took into consideration the report of a panel of doctors and ruled against the women’s plea:
"As per a report of the medical board constituted to examine the 37-year-old woman, there was no physical risk to the mother in continuation of pregnancy. Everybody knows that children with Down’s Syndrome are undoubtedly less intelligent, but they are fine people."
The Bench has deemed that Down’s Syndrome is not a life-threatening condition, and that there is no physical risk to the mother from the pregnancy. They empathised with the fact that the child may suffer from mental and physical challenges, but stated that their hands are tied: "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."
Abortion is a contentious subject in the country, in spite of India’s progress in issues revolving around sexual and reproductive rights. Section 312 of the Indian Penal Code, 1860 talks about unlawful termination of pregnancy, but does not use the word 'abortion'; it talks about "causing miscarriage". It utilises the words 'miscarriage' and 'unborn child' without legally defining the meaning and scope of these words. According to the provision, there must be good faith and the purpose of protecting the life of the mother when terminating the foetus. The MTPA lays down that the termination of pregnancy cannot be after the foetus is 20 weeks old, unless the life of the pregnant mother is threatened — where she is at physical risk, or grave mental anguish may be caused to her as a result of the pregnancy. It may be noted that the MTPA infringes on the right to privacy, the right to health and the right to dignity of a pregnant woman, all of which has been guaranteed by Article 21 (the right to life) by the Constitution.
In 2016, the Supreme Court allowed a rape survivor to terminate her pregnancy beyond the prescribed limit of 20 weeks — at 24 weeks — citing grave physical and mental challenges if she carried the foetus to term. A Bench of Justices JS Khehar and Arun Mishra granted the benefit of Section 5 of the MTPA to the petitioner and stated, "We grant liberty to the petitioner and if she desires to terminate the pregnancy, she is permitted." In 2015, the Supreme Court overturned the verdict of the Gujarat High Court that had refused to permit a 14-year-old rape survivor to abort her 25-week-old foetus.
The high court, in its judgment, did acknowledge the adverse physical, emotional and psychological effects of the decision on the life of the petitioner, but decided to go ahead with a positive and pedantic reading of the MTPA. On appeal judgment, the Supreme Court considered the recommendations of the medical panel and then decided on her best interests. In 2008, the Bombay High Court disallowed a woman from aborting her 26-week-old foetus — her foetus had been diagnosed with a congenital heart defect. The petitioners challenged the constitutionality of section 5 of the MTPA, but the high court stated that it could not read down section 5 as it would mean that the judiciary was usurping the power of the legislature. Again, a pedantic and strict reading of the MTPA was pursued, and the court ruled that abortion on grounds of gross abnormalities of the foetus was permissible within 20 weeks only; the court, therefore, denied the petitioner her right to abort the foetus.
In another case, R versus Haryana, the Punjab and Haryana High Court refused to grant the petitioner, a rape survivor, permission to terminate her pregnancy as the medical panel’s recommendations did not agree to an abortion. The court requested, by way of caution, doctors from Aiims to reassess the possibility of abortion. However, in the course of the proceedings, the petitioner gave birth to a baby she probably did not want to keep.
In the legal debate of the right to life of the pregnant woman versus the right to life of an unborn child, the real, substantial concept of agency of the woman is lost. To contextualise this further, the MTPA, in reality, enshrines no right of the woman to abortion. It merely puts down lengthy, procedural obstacles in the exercise of such a right. Moreover, the fact that the judiciary, more often than not, refuses to apply judicial activism in matters where the existing law is unjust or can longer provide for just remedies or solutions.
In my opinion, to depend on an appointed medical panel that may be arbitrary and capricious is setting a dangerous precedent for sexual and reproductive rights of women in India. The present Supreme Court case is witness to how the pedantic and strict reading of the law, without interpreting it in context, can be immensely threatening to the functioning of the rights system for women.
Updated Date: Mar 02, 2017 09:47 AM