Recently, a 16-year-old minor rape victim approached the Telangana High Court seeking termination of pregnancy under the Medical Termination of Pregnancy Act 1971, which was amended in 2021. The medical evaluation was conducted accordingly, and it was confirmed that the victim had been subjected to rape and was 26 weeks pregnant. In my discussion, I shall discuss the provisions that the court investigated and delivered a judgment that gave justice to both the unborn child and the mother.
To begin with, one of the oldest acts that are existing in India for matters related to abortion is the Medical Termination of Pregnancy Act, this act was originally made in the year 1971 and has been amended twice since then first in 2002 and this year in September 2021 and Article 21, which guarantees Right to Life and Liberty to every citizen and this right is also extended to the unborn foetus, therefore Right to abortion is not an absolute right, which means that the right is not enforceable in every case but there are certain cases when abortion could be done such as any mental or physical injury during the pregnancy.
The legitimacy of the Judgement in accordance with the Medical Termination of the Pregnancy (Amendment) Act 2021
The High Court bench gave a judgement in the favor of the abortion, the reason that was stated was that a. Pregnancy caused rape violates the right of the victim under Article 21 of the Constitution and b. It stressed the right to life of the mother over the life of the foetus, it reiterated the fact that Article 21 includes the right of a woman to choose between pregnancy and termination of the same, this is applicable in the case of unplanned pregnancy as well.
The judgement of the court is valid on the moral ground as well as upholds the productive right of women but is not in congruence with the provision of India’s Abortion law, the law has been existing in India for 50 years now and has been amended twice and it still lacks the inclusivity and progressive development in the main arena of woman’s reproductive right that is abortion, the attempt to remove the discrepancy is visible in the High Court’s verdict.
The Medical Termination of Pregnancy (Amendment) (MTP) Act 2021 has indeed made abortion comparatively safer and more accessible to women, it has expanded legal abortion on many social and humanitarian grounds to ensure comprehensive care. Some of the major changes that have been made to the act to endorse the reproductive and privacy rights of women are a. increased the upper gestation from 20 to 24 weeks and included special categories of the women, survivors of rape, differently-abled women, minors, among other to avail this provision b. Extension of MTP services to provide safer access to abortion under the failure of contraceptives, irrespective of the marital status of a woman c. Confidentiality clause, name of the women cannot be revealed to anyone except a person authorized by law, but there are certain loopholes in implementing these provisions properly and with full legitimacy.
The Telangana High Court, stressed the fact the pregnancy exceeds 24 weeks but that does not mean that the woman is out of remedies or that now needs to bear the child, she still has the provision to approach the high court for direct termination of the pregnancy, and the court also observed that the pregnancy is caused by rape and continuing would violate her rights under Article 21 and another observation that court gave primacy was that, the life of the mother is greater than that of an unborn child in case of abortion and it also protected under article 21 which includes reproductive rights of the mother. Moreover, the court also looked into the fact that bringing up this child would cause mental stress and she was not in the position to bear the child, financially and physically.
Court’s approach towards the case
The High Court tried to use a rational approach because suppose even if the court gave a verdict against the abortion as it crossed the upper gestational limit according to the Medical Termination of Pregnancy (Amendment) Act, 2021, the minor would have been forced to give the birth to a child. This would not only cause the woman mental trauma but also to a child in some ways as the woman was already under stress because of the unplanned pregnancy due to rape and she was not even in the stable financial or mental position to raise the child.
India does recognize the unborn child as a legal person, and grants all the rights after birth, the court did take into consideration the right to life an unborn child but was of opinion that the life of a foetus cannot be placed on a higher pedestal than that of the life of the practitioner. The decision is in a way valid as it upholds the dignity, and right of women to make choices related to their pregnancy.
In this case, the pregnancy is caused by sexual abuse which not only infringes her right to life but also causes her a heavy mental toll and financial stress as she could not be able to bear all the expenses of the child, which would eventually also affect the growth and development of the child are born and this may have adverse effects on the health and future of both the child and mother. Hence, the decision made by the court is a mutual one, beneficial to both the unborn child and the mother.
The decision by the High Court may see as neglecting the Medical Termination of Pregnancy (Amendment) Act 2021, but the ground on which the decision was taken in the favour of abortion was rational and it also upheld the woman’s right to live with dignity and self-respect and most importantly it also enshrined the right to reproductive choices of the women held under Article 21 of the constitution.
The decision may seem to be incongruent with the Medical Termination of the Pregnancy act, but how the court dealt with the sensitivity of the case and its attempt in delivering justice to the mother and the unborn child is creditable and doesn’t seem like intervention in the policy matters or violating the already existing law.
Author(s) Name: Nishka Kapoor (NALSAR University of Law, Hyderabad)