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Are Abortion Laws Violative of Women’s Personal Liberty ?

Three women have recently filed a PIL in Supreme Court of India, demanding that any reproductive choices made by a woman in the first trimester (up to 12 weeks of pregnancy) must get complete protection of the law. They have submitted before the Hon’ble court to declare certain provisions of the Medical Termination of Pregnancy Act, 1971, (MTP Act), as unconstitutional as they restrict a woman from exerting her fundamental right to reproductive choice.

According to the petitioners, Sections 3(2)(a), 3(2)(b), Explanation 3 to 3(2); Sections 3(4)(a), 3(4) and 5, are discriminatory and violative of personal liberty and bodily autonomy of the women.

Section 3 of the MTP Act allows the termination of pregnancy up to 12 weeks of gestation by a registered medical practitioner, if he/she believes that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health.

For pregnancies between 12 to 20 weeks, termination requires the same opinion from two registered medical practitioners. Section 5, permits termination of pregnancy exceeding 20 weeks only in cases of immediate risk to life.

The petitioners’ contention is that certain provisions of the MTP Act are in violation of the principles of privacy as was explained in the case of Puttuswamy in 2017, when a nine-judge bench held unanimously that the right to privacy is constitutionally protected.

The petitioners also quoted the 1973 landmark judgement of the United States Supreme Court in Roe vs Wade case, in which the court held that the government could not prohibit abortions in the first trimester because a minimal risk is involved in the termination of pregnancy in this period.

The nature of the Roe vs Wade case was that one Norma McCorvey, whose name in documents was mentioned as Jane Roe had filed a case in 1971, against Henry Wade, the district attorney of Dallas County, who had enforced a Texas law prohibiting abortion except in the case of danger to a woman’s life.

Taking cognisance of the case; the US Supreme Court in a 7:2 decision affirmed the legal position of a woman’s right to go for abortion according to the 14th Amendment of the US Constitution. The judgement granted women right to an abortion during the entirety of the pregnancy and defined different levels of regulation in the second and third trimesters.

In the year 1994, at Cairo International Conference on ‘Population and Development’, a need was felt to provide an environment to facilitate women’s autonomy in reproductive decisions. Here, an international agreement to recognise the right to sexual and reproductive rights of women was signed by 179 countries, including India. Despite this agreement, women in India have not been given the right to choose as to when and how many children she must have.

According to renowned advocate, Yawer Qazalbash, ”Around half a century ago when Medical Termination of Pregnancy Act 1971, was legislated it had been a taboo among old Indian society, besides being an offence under various provisions of IPC, if any woman tried to get her pregnancy terminated. It was considered unethical or immoral, irrespective of whatsoever reasons.”
“There had been long debates world over, far and against, in the realms of jurisprudence. It was argued that if life of the mother was found to be in danger, termination of the foetus was justified, because the mother has the right of self- defence against an unborn child; while on the other hand it was argued that the foetus was a person and killing it for whatever reason is at least wrong on immoral, unethical and legal grounds.”

“The MTP Act 1971, had tried to create a balance between the two views. Provisions were made to terminate a pregnancy until the foetus was 12 weeks old when it had not attained a status of ‘person-hood’, that too by a medical practitioner who was acting in good faith. But further restrictions were imposed if it was 20 weeks old.”

The provisions of the Act of 1971 were made for the sole object of protecting the health, mental or physical, of women. But the perceptions of modern society have changed almost altogether  since the legislation came into being.”

Qazalbash further said, ”Not only large number of rape cases are coming up, but the liberalization of society, where perceptions like two consenting adults indulge in sexual acts, including adulterers, does not constitute any offence, need opportunities to get the unwanted pregnancy terminated. In such type of circumstances, people resort to approach fictitious medical practitioners and harm is inevitable to be caused. With these views and the circumstances, these provisions of the Act may be viewed.”

Talking to Lawyers Update, noted advocate Navin Jaggi and his team comprising Aashna Suri and Sayesha Suri, supporting Qazalbash’s views said, “The Medical Termination of Pregnancy (Act XXXIV) of 1971, enumerates various conditions when pregnancies can be terminated by the registered medical practitioners, which are:

• When the gestation period is less than twelve weeks, pregnancy  can be terminated by a registered medical practitioner; or
• Where the gestation period is exceeding twelve weeks but below twenty weeks, and, a minimum of two registered medical practitioners are of the opinion formed in good faith, that the continuance of the pregnancy would imply danger to the life of the pregnant woman and/or grave injury to her physical and/or mental health.

• For any woman, who is either to attain the 18 years of age or who is of unsound mind even after attaining the age of majority, the pregnancy shall be terminated only after obtaining the assent of her legal guardian in writing.”

Navin Jaggi and his associates admitted, “Various provisions of the Act, such as, Sections 3 (2) (a), (b), Sections 3 (4) (a) and Section 5 are discriminatory and violate the personal liberty and bodily autonomy of a woman. As per the Act, the termination of pregnancy can only be done in good faith by the registered medical practitioners. The word ‘good faith’ has not been defined under this Act. It means that the discretion is in the hands of medical practitioners.”

“When a child is born deformed, it is a difficult task for the mother to take care of the child, and the child also faces difficulties throughout life. If deformity can be a cause to have an abortion within twenty weeks, it can be a cause for abortion even after twenty weeks. In such situations, where the statutory time limit of abortion is exceeded, women are left with no other option but to opt for abortion by illegal or unhygienic means. It sometimes puts the life of the pregnant woman in danger.”

Advocate Navin Jaggi, Aashna Suri and Sayesha Suri further said, “It should also not be forgotten that rape is an evil faced by girls, not only at the hands of outsiders or strangers, but also by the members of the family and near relatives. Such happenings are generally not reported to the government officials and are usually concealed and the girl is taken to a shady hospital using unhygienic condition to abort the foetus. Whereas, if we look from the other way round, a particular family may also frame up such circumstances in order to get a female foetus aborted.”

“The Act has also not taken into consideration, the Fundamental Rights of the unborn foetus. It is to be noted that life exists even in the womb of the mother because life begins at or near the conception of the pregnancy; hence, the Article 21 of the Constitution of India is applicable to an unborn as well. The unborn is a separate legal entity present in the womb of the pregnant woman. Hence the unborn cannot be deprived of the ‘Right to Life’ under Article 21 of the Constitution of India”, concluded Jaggi and his associates.

Abortion in India is legal in certain circumstances. It can be performed on various grounds until 20 weeks of pregnancy. In exceptional cases, a court may allow a termination after 20 weeks of gestation. If a pregnant woman wants termination of pregnancy after  20 weeks, she needs to appeal before the High Court or Supreme Court for permission, which relies on the advice of the medical boards appointed to examine the woman petitioning for abortion. However, judgments may vary from case to case basis.

In December 2017, a 13-year old rape survivor’s father approached the Bombay High Court seeking permission for the termination of a 26-week foetus. The girl was repeatedly raped by her cousin. Considering the report of the medical board which claimed that there was a greater risk to the pregnant girl’s life if continued, the court held that the girl was physically incapable to deliver a child, and granted permission for termination.

A 15-year-old girl who had eloped to marry sought permission from the Delhi High Court to abort her 25-week pregnancy. The medical board assigned to examine her case, however, reported that termination would pose serious risks to the lives of both the foetus and the mother. Subsequently, the High Court denied the girl permission to undergo an abortion.

After the foetus of a 24-year-old woman from Pune was diagnosed with a cardiac anomaly, she approached the Bombay High Court seeking permission to abort her 24-week foetus. The medical board asked to examine the woman, advised abortion while reporting that the child if born, may have to undergo multiple surgeries. The court consequently, granted permission for the abortion.

In October 2017, a 16-year old rape survivor’s father approached the Bombay High Court, seeking permission for the termination of his daughter’s pregnancy in 27th week of gestation. The High Court denied the request. The decision was made following a report presented by a panel of doctors who examined her, which suggested that an abortion at this stage would pose potential risks to her health.

In October 2017, a 16-year old’s father had approached the Punjab and Haryana High Court to seek permission for the termination of her 26-week pregnancy that resulted from rape. The court, following the report of the medical board that stated the abortion can be undertaken with the understanding that it involves risks allowed the abortion and directed the board to carry out the necessary procedures.

The mother of a 19-year-old girl suffering from mild to moderate mental retardation had approached the High Court of Himachal Pradesh in October 2017 for permission to terminate the girl’s 32-week pregnancy. The medical board constituted by the High Court observed that if the pregnancy were continued, the foetus would suffer severe cognitive and motor impairments even after surgery. The court, therefore, granted permission for the termination of the pregnancy.

In September 2017, the mother of a 13-year old rape survivor moved the apex court for permission to terminate her 32-week pregnancy. The Supreme Court permitted the abortion citing that it was a result of sexual abuse and the victim did not want to carry on with it, despite opposition from the Centre that argued that the pregnancy was too advanced.

In September 2017, a woman in her 31st week of pregnancy sought permission to terminate her pregnancy as both kidneys of the foetus were found to be not functioning. Noting that the continuation of the pregnancy will cause more mental anguish to her, the Supreme Court granted her permission.

A 10-year-old girl in Chandigarh was found to be 26-weeks pregnant by local doctors, after which the District Court was approached to allow her to undergo an abortion. The girl, who was raped several times by her maternal uncle, was denied permission by the court on July 2017, to undergo an abortion, after it was later revealed in another examination that the foetus was 32-weeks old.

In July 2017, the 24-week foetus of a 21-year-old woman from Mumbai was diagnosed with mental abnormalities. Following this, renowned gynaecologist Dr. Nikhil Datar helped the husband of the woman file a petition in the Supreme Court, to allow her to undergo an abortion. The Supreme Court granted permission.

In June 2017, a Kolkata-based woman filed a petition in the Supreme Court, challenging Section 3 of the MTP Act which denies permission to abort the foetus beyond 20 weeks of pregnancy. The woman discovered that her foetus had a congenital defect when she was 23 weeks pregnant and had crossed the 20-week benchmark within which it is legal to terminate a pregnancy.  The Supreme Court in response appointed a medical board of seven senior doctors in Kolkata directed it to examine her. The apex court has called for a need to amend the MTP Act, to make it more “meaningful”.

In May 2017, an HIV-positive destitute rape victim approached the Patna High Court with a plea to terminate her pregnancy. After the High Court turned down the plea, saying that “it was a compelling responsibility of the state to keep the child alive”, the Supreme Court was approached. The apex court then granted permission to abort the now 26-week old foetus, directing an AIIMS medical board to examine her. It stated that “a woman, who has already become destitute, being sexually assaulted and suffering from a serious ailment, should not go through further suffering. The quintessential purpose of life is the dignity of life and all efforts are to be made to sustain it.”

In March 2017, a 28-year-old woman from Mumbai approached the Supreme Court to seek permission to terminate her 27-week pregnancy after discovering that the foetus was suffering from Arnold Chiari Type II syndrome – a condition similar to the one, she saw her brother grow up with. The Supreme Court denied her permission for an abortion, ruling that there are chances the baby may be born alive.

Professor of Law, Dr Khan Noor Ephroz, giving her views on the subject suggested that “like Vishakha case guidelines, Hon’ble Supreme Court may be pleased to lay down legal guidelines under the MTP Act for doctors and courts to follow while deciding on abortion after the 20-week mark. This has been established that there have been innumerable varying judgements of different courts on termination of pregnancy beyond 20 weeks. Though every judgement almost differs from the other but each one has to be followed as legal obedience. Moreover, the courts while delivering their judgement  largely depend on the recommendation of the medical board; wherein, the doctors in the absence of the set rules  and guidelines give their opinion on the basis of their personal traits of ethics, morality, values and beliefs, which may be classified as ‘arbitrary’ in nature.”

“Once the guidelines are set in order by the Supreme Court for granting the permission beyond the mark, the power of granting permission should be shifted to Executive authority, under the Ministry of Health and the courts should not be burdened to carry out Executive work of deciding which woman should be aborted and which one may not. It amounts to judicial outreach as a matter of fact”, said, Dr Khan.

Dr. R.V. Asokan, Hony Secretary General, Indian Medical Association, applauding the abortion law said, “The Medical Termination of Pregnancy Act 1971 is one of the most progressive legislation of its kind in the world. This law is perfectly constitutional and protects the health of the woman. From a health point of view, it is absolutely essential.”

Dr Asokan further said, “In my opinion, the clauses sections 3 (2) (a), (b), sections 3 (4) (a) and section 5 are absolutely necessary to protect the person from undergoing MTP. They do not appear discriminatory or violating of the personal liberty and bodily autonomy of the woman. Nevertheless, in the changed milieu of social, medical and technological context, the following amendments and revised interpretations are necessary:-
(1) Medical Termination of Pregnancy should be extended to 24 weeks of
(2) Sections of POCSO Act 2012 when read with Majority Act 1875 have created difficulties in enforcement across the country. In view of the same new provisions defining the age of consent and age to avail legal MTP services should be separated from the above two Acts and need to be fixed on at least 16 years.”

When asked,  Do you agree that the MTP Act, 1971, quite often compels several women, including minor girls to avail abortions from illegal clinics, losing their right to safe abortion which is an aspect of the right to health under Article 21, Dr Asokan clarified, “If the age of consent and age for availing safe MTP services could be separated from the terms minor and major without prejudice to any other Act, this issue could be resolved within the legal parlance.”

Dr Asokan enlightened us through many other valuable suggestions in this regard.

He clarified that “Explanation (2) under Section(3) (requiring the marriage of woman as a prerequisite) for invoking failure of any device or method for contraception is a clear violation of the personal liberty and bodily autonomy of a woman.
Legislations legitimising live- in relationship and upholding the right of a woman to consent at 16 years without a formal relationship has to be factored in. Section (3) subsection(1) protects the registered medical practitioner if any pregnancy is terminated by him in accordance with the provisions of the Act. Very unfortunately many registered medical practitioners have been booked under the POCSO Act for performing MTP and not informing the police. While the MTP Act protects the identity of the woman irrespective of age and the registered medical practitioner is duty-bound under the Act to keep the confidentiality, POCSO Act violates the confidentiality of the patient and the protection given to the doctor nullifying the entire purpose of MTP Act.”

Giving her views, Prerna Kumari, the noted Supreme Court lawyer said, “The existing abortion law is violative of the Article 21 of the Constitution of India which also includes the  right of reproductive as the core of personal liberty and bodily autonomy guaranteed under Article 21. The petition also takes the precedent of the case of Suchitra Srivastav Vs UOI (2009) 9 SCC 1 and  KS Puttaswamy (2017) 10 SCC 1. Abortion, as per the 1971 Act, is not permissible after 20 weeks of pregnancy. This provision is excessive and harsh. The Medical Termination of Pregnancy (Amendment) Bill 2014 and Medical Termination of Pregnancy (Amendment) Bill 2017 have proposed to enhance the cap for termination of pregnancy to 24 weeks.”

Advocate Prerna Kumari further said, “Law adversely affects the sexual autonomy of single women. While it protects married women by allowing them to terminate an “unplanned and unwanted pregnancy, the same is not extended to single women. There is no rationale for not providing the same protection to an unmarried woman. On the contrary, an unwanted and unplanned pregnancy will invariably in the case of an unmarried woman ensure more grave consequences. The provision treats equals unequally. Studies suggest that unmarried sexually active women face considerable obstacles to contraceptive use and abortion facilities.”

“The Act does not allow abortion of pregnancy in the case of minors or mentally ill persons without the consent of the guardian. As a consequence, the guardian enjoys complete autonomy over such persons. An unwilling minor or mentally ill person will be compelled to carry the pregnancy to the full term and face all the consequences and challenges which come along with the fact of being a mother owing to the refusal of the consent of the guardian.”

Responding to our queries, Dr Ravindra Wankhedkar, immediate past National President of Indian Medical Association (IMA) and now treasurer of the World Medical Association and President, SAARC Medical Association said, “Section 3 (2)(b) can be discriminatory in view that in explanation 2, it is mentioned that pregnancy can be terminated on the ground of failure of contraceptive method used by pregnant woman or husband. Here we cannot terminate pregnancy in unmarried woman who is major and having consensual sex and contraception fails”.

Dr. Wankhedkar agreed that “the MTP Act quite often compels several young women,  especially unmarried girls to avail abortion services from illegal clinics and said, “That’s true because such patients are reluctant to go to authorised abortion clinics as one has to register a medico-legal case. In the result, many patients land up with quacks or illegally procure abortion pills resulting in complications. As per Act even though patients demand MTP, it is the opinion of RMP that decides whether to terminate the pregnancy or not. So it’s not considered as the right to health of woman because MTP Act supersedes all other laws”.

As a matter of fact, decades ago, there was only one method of Dilatation and Curettage (D&G)  available for termination of pregnancy, which was an invasive procedure that required general anaesthesia to remove the products of conception. This procedure had complications such as bleeding, perforation of the uterus, infection, etc.

The MTP Act was brought in with the view to ensure the mother’s safety according to the medical technology based on old sciences available at that time in 1971. However, today in the second decade of the 21st century, there is an advancement in reproductive medicine and procedures, which are easily available. Today, there are safer options such as pharmacological solutions, Dilatation and Evacuation (D&E). D&E is less invasive than D&C and requires only local anaesthesia. As such, abortion in advanced stages of pregnancy has become safer with the availability of better anaesthesia, better intensive care and modern gases. As such the laws must keep pace with the advancement of technology for providing natural justice to citizens.
It is for sure that restrictive abortion laws will result into increased unsafe abortions and maternal deaths. If a woman is committed to getting her aborted, she will definitely do so through clandestine and unsafe methods. As such, extensive review under the technological, social and legal perspective is need of the day.

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