SC urges woman to rethink plea to end 26-week pregnancy

SC urges woman to rethink plea to end 26-week pregnancy

Context: Recently, a three-judge bench of Supreme Court has urged a married woman to reconsider her decision to abort her pregnancy which has crossed twenty-six weeks.

  • Medical termination of pregnancy in India is governed by Medical Termination of Pregnancy Act 1971.
  • Section 3 of MTP Act deals with the termination clause, the pregnancy can be terminated if:
  •  Length of pregnancy does not exceed twenty weeks (requires opinion of one practitioner) or
  • Twenty to twenty-four weeks (requires opinion of at least two practitioners) provided that:
    • Continuance of pregnancy would involve life risk for the pregnant woman or of grave injury to her physical or mental health.
    • Or if the child were born, it would suffer from serious physical or mental abnormalities.
  • Beyond 24 weeks if the termination is recommended by a Medical Board after diagnosis of substantial fetal abnormalities.

Issues with respect to the time frame

(twenty-six weeks) for termination of pregnancy:

  • Women’s right to reproductive choices is part of ‘personal liberty’ under Article 21 of Constitution  as observed in Suchita Srivastava vs Chandigarh administration case.
  • Socio-economic and mental health condition: In XYZ v. Maharashtra, a minor was allowed to terminate her pregnancy in 26th week after considering her socio-economic and mental health condition.
  • Right to privacy: In KS Puttaswami case, SC held that right to privacy enables individual to retain and exercise autonomy over body and mind.
  • Laws in over 60 countries allow women to get an abortion on request at any point in the gestation period.
  • Rights of unborn child: State also has to think about the rights of unborn child, there is an ethical dilemma to strike a balance between the rights of mother and rights of unborn child.

Critical appraisal

  • Unsafe and illegal abortions: As per a lancet study in 2018, there are around 16 million abortions accessed in India, 73% of which were medicated abortions accessed outside health facilities.
  • Shortage of doctors: MoH&FW 2019-20 report on Rural Health Statistics indicates that there is a 70% shortage of obstetrician-gynecologists in rural India, pushing women for illegal abortions and high maternal mortality.
  • Since law does not permit abortion at will, it pushes women towards illicit and unsafe conditions.
  • Lack of comprehensive sex education: In India, lack of sex education contributes to unplanned pregnancies, and the MTP Act alone is not enough to address this issue.
  • Sex-selective abortions: There is need to strike a balance between female reproductive rights keeping in mind that the rights do not lead to increased female feticide.

Supreme Court Judgement in X vs Union of India

In this case, a women pleaded the court to abort her fetus after 26-weeks of pregnancy. 

CJI has opined that women cannot claim an absolute, overriding right to abort as reports from AIIMS have confirmed that the pregnancy is not a cause of immediate danger to her life or that of fetus.

Reasoning given by S.C.:

  • S.C. went into Section 5 of MTP Act which provides exception to Section 3 and 4 of the MTP Act.
  • Section 5 says that Section 3 and 4 shall not apply when termination of such pregnancy is necessary to save the life of pregnant woman.
  • Court opined that, the term ‘life’ in Section 5 cannot be equated to the broader meaning in which ‘life’ is used in Article 21 of the constitution.
  • While life in Article 21 deals with right to dignified, meaningful life, Section 5 of MTP act uses ‘life’ in context of life and death situations.
  • Section 5 allows abortion only if pregnancy poses actual, physical, and immediate risk to woman’s life and health.
  • Court also raised concerns towards the rights and well-being of unborn child.

Rights of unborn child:

  • In international law, there is no “right of the fetus” or “right of the unborn child.”
  • UDHR also explicitly bases human rights on birth.
  • However, Indian legal scenario is unclear on whether fetus is a living being or not.
  • Pro-choice discourse is not conducive: Absolute pro-choice discourse is not conducive to the values of Indian society.
  • The test of “fetal viability” as a limit to allow abortions (developed in Roe v Wade) is gaining grounds in India. (Fetal viability is the time after which a fetus can survive outside the womb.)
  • In the instant case, court has remarked that there are rights of unborn child too and should be balanced with women’s autonomy.

Way forward

  • In India, where sex selective abortions are prevalent, the state needs to be watchful of anything that might be adversarial for efforts against female feticide.
  • There is a need for increasing awareness and information dissemination with respect to responsible sexual conduct and reducing unwanted pregnancies.
  • State must ensure that all parts of society are able to access contraceptives to avoid unintended pregnancies.
  • Medical facilities and Registered Medical Practitioners must be present in each district and are affordable to all.
  • Treatment must not be denied based on one’s caste or other socio-economic factors.

Prelims MCQ:

Q. Consider the following conditions regarding Medical Termination of Pregnancy Act, 1971.

1. Risk to the woman’s life.

2. Physical or mental abnormalities in the fetus.

3. Grave injury to physical or mental health of woman.

4.  Rape or incest.

How many of the above are the conditions under which an abortion can be legally performed up to 24 weeks of gestation under the MTP Act?

(a) Only one

(b) Only two

(c) only three

(d) All four

Answer: (d) All four.

Explanation: The MTP Act allows for abortions up to 24 weeks of gestation in cases of risk to the woman’s life, physical or mental abnormalities in the fetus, Grave injury to physical or mental health of woman, and in cases of rape or incest.

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