The discussion over allowing abortion began with the US Supreme Court’s landmark case Roe v. Wade, which led to the creation of ‘pro-choice’ and ‘pro-life’ camps and also marked the beginning of grass-roots activism in favour of abortion. The judgement acknowledged a pregnant woman’s liberty in choosing to have an abortion without excessive restrictions being enacted by the government. It affected federal law and laws in about 46 of the states regarding abortion. The Court held that the Due Process Clause of the Fourteenth Amendment provides ‘right to privacy’ which protects pregnant woman’s choice over abortion, while also upholding that this right is not absolute and must be balanced against the government’s interest to protect women’s health and the prenatal life. The balancing test was tying the degree of state regulation being permitted till the trimester of the pregnancy which is to be aborted.
In 1992, the Supreme Court revisited the case during Planned Parenthood v. Casey and modified the judgement of the Roe case. The Court reaffirmed a woman’s right to choose over having an abortion as being constitutionally protected, however dropped the trimester framework. Instead, the court adopted a standard based on foetal viability. International Courts and Tribunals have not addressed the philosophical issue of when life begins but they do have focused on the interpretation of the language used in international charters and documents on the same. Their general opinion has been that references to every human being/everyone/every person excludes unborn foetus.
Abortion in India
Abortion is severely condemned in Vedic, Upanishadic later Puranic and Smriti traditions. This was reflected in the law as well. Till 1971, abortion was criminalised under Section 312 of the Indian Penal Code, by calling it “intentionally causing misconception”. Unless carried out in a situation where it was to save the woman’s life, abortion was punishable with three years in prison and/or fine for the one who carried out abortion and seven years in prison and/or fine for the woman who availed of abortion services. Even the third clause contained in the Declaration in the Code of Ethics of the Medical Council of India states, “I will maintain the utmost respect for human life from the time of conception”, taking a pro-life position. The Courts have interpreted Article 21 of the Constitution to include the right to reproductive choice. On the other hand, the Article has been interpreted to include the Right to Life of an unborn foetus, and thus the courts must balance the two interests, i.e., the mother and the prospective child’s.
In Suchita Srivastava v. Chandigarh Administration, the Supreme Court held that the State had an obligation to ensure a woman’s reproductive rights as a component of the Right to Life under Article 21 of the Constitution. In Dr. Mangla Dogra & Others v. Anil Kumar Malhotra & Others, it was held that the husband can’t compel his wife to continue with the pregnancy against her wishes. The judgement was in line with Section 3(4)(b) of the MTP Act, according to which consent from only one person is required to go ahead with the abortion, which generally is the woman undergoing medical termination of pregnancy herself. However, there have been judgements that do strip off the autonomy that the Act in spirit aims to accord to women. One such judgement was Samar Ghosh v. Jaya Ghosh, in which the Court held that there needs to be spousal consent in case of abortion. The judgement doesn’t alter what is stated in Section 3 of the MTP Act, however, it does negatively affect women’s body autonomy by upholding spousal interest in decisions about their own bodies.
Medical Termination of Pregnancy Act, 1971
Medical Termination of Pregnancy Act, 1971 governs providing of abortion services in India. A legal framework, the Act is formed on the basis of answering these questions: i) Who can terminate the pregnancy; ii) When can pregnancy be terminated, and iii) Where can pregnancy be terminated. There were two perspectives when the act was introduced. The first was that of proponents of family planning and population control who favoured the liberalisation of abortions. The second is of those concerned with the aftermath of abortion being performed by unqualified, untrained and ill-equipped medical practitioners.
The Act was amended in 2021, with the objective to expand access to safe and legal abortion services. The upper gestation period was changed from 20 weeks to 24 weeks for special categories of women, which included rape survivors, minors, disabled women, victims of incest and another vulnerable group of women. Another change added was the termination of pregnancy. till 20 weeks, the opinion of one medical professional is required and for 20-24 weeks, opinions of two medical professionals are required. The upper gestation period is no longer applicable to special cases with foetus abnormalities. A confidentiality clause was also added in the Act, under which the name of other sensitive data of a woman, who has undergone an abortion, can’t be revealed to anyone except a person authorised by law. Lastly, the amendment to MTP has also extended its services under the failure of the contraceptive clause to unmarried women, in order to provide access to safe abortion on the basis of a woman’s choice, irrespective of the woman’s marital status by amending Section 3 of the Act. The section now reads ‘woman and her partner’ instead of ‘woman and her husband’,
The problem arises with the over-lapping territory of the MTP Act with Pre-Conception and Prenatal Diagnostic Techniques (PCPNDT) Act 1994 and Protection of Children from Sexual Offences (POCSO) Act, 2012. Women themselves decide to have a sex-selective abortion, under pressure from their husbands’ families and usually, it is not an informed choice made by them willingly. Other factors that shape reasons for abortion are illegitimacy, economic constraints, lack of social facilities for child care. Despite the PCPNDT Act, which banned the test of the biological sex of the foetus, the sex ratio at birth still has continued to decrease. When viewed together, the MTP and PCPNDT Acts demonstrate that, while the right to abortion includes women’s right to control their bodies, they should be prohibited by law from aborting female foetuses.
Telangana High Court Judgement
The Court held that the life of the foetus can’t be prioritised above that of the petitioner, who in this case was a rape survivor minor girl and was 26-week long pregnant. She argued that, first, the continuance of pregnancy threatened her physical and mental beings and second being she wasn’t in a physical and mental condition to bear the child. The Court in allowing her abortion observed that even if pregnancy exceeded 24 weeks, a pregnant woman is not out remedies. She can directly approach the High Court to get her pregnancy terminated. The court stressed giving primacy to the life of the mother over the life of a foetus in abortion cases, in line with their right under Article 21 to choose termination or continue their pregnancy, even if the pregnancy is unplanned. The position of the Telangana High Court was opposite to the generally conservative position adopted by the Courts. In a recent case at the Calcutta High Court, the Court refused to permit abortion of a 31-week pregnant woman after she discovered that the foetus suffered from rare congenital heart disease, following the recommendation of the medical board constituted under MTP Act’s recent amendment.
In Indulekha Sreejith v. Union of India & Ors, the Kerala High Court denied a woman’s request to terminate her 31-week pregnancy, claiming that the unborn child has rights under Article 21 once it becomes a foetus and the unborn child has the same rights as a born child. In Re: Suparna Debnath and Anr. v. State of West Bengal, the Calcutta High Court rejected a woman’s petition to terminate her 26-week pregnancy on the grounds the foetus’ right to love outweighed the mother’s mental trauma. The foetus has a risk of down syndrome along with medical issues in the heart, abdomen and oesophagus. The Court disregarded the mother’s mental trauma and her financial position, which are the two factors that influenced her decision to raise a baby requiring prolonged medical facilities.
Unlike the above two mentioned cases and other cases that follow the same basic line of argument as them, Telangana High Court adopted a different position, one that recognised the mother’s autonomy and reproductive rights, allowing medical termination even when there was no complication with the foetus. Taking such an approach could bring about a paradigm shift in the courts’ approach towards abortion cases and priority being given woman’s reproductive autonomy as opposed State’s interest to protect the foetus. Ignoring aspects like mental health, physical and mental well-being of the mother, forces the child’s birth on the mother and raises ambiguity over the quality of life that the child would have. An approach in line with that of Telangana High Courts will actually prevent such an issue and will give hope for a better future.
Author(s) Name: Avisha Dhiman (Maharashtra National Law University, Mumbai)