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.
