This article is written by Kashish Khurana, pursuing B.A.LL.B (Hons.) from School of Law, Jagran Lakecity University, Bhopal (M.P.).
Table of Contents
The aim of this article is to make an awakening call regarding the rate of increased abortion deaths in the country. The Constitution of our country provides certain fundamental rights to each and every citizen of our country. ‘Right to life’ under article 21 of the Indian Constitution is also a fundamental right provided to every person. The ambit of this article is very vast and has been interpreted by the judiciary in various aspects. Right to abortion is also one of the fundamental rights that can be included under this article.
India being a democratic country provides every one with the rights and choices that they want to make. Right to abortion is not just a fundamental right but also a human right. Every expecting woman should have the right to make choices and decisions of her own. Right to abortion is one such right and choice provided to the woman.
This research paper mainly highlights the issues that women face in the termination of the pregnancy. The legislature has framed a statute for the protection of the woman from unsafe abortions. This Statute is known as The Medical Termination of Pregnancy Act, 1971. There are certain conditions on the basis of which the termination of the pregnancy is allowed. There have been various instances where women are denied the termination of their pregnancy despite the legislation. The judiciary has also suggested the Central Government to come up with an amendment in the present abortion laws to serve a better life for woman.
“No woman can call herself free when she does not own and control her own body”
The word “abort” was derived from a latin word “abortio” which means “to miss carry”. Under criminal law the term abortion means the termination of pregnancy or expulsion of the immature foetus before completion of its full growth.
The practice of abortion is widely accepted by various countries of the world. This concept was not accepted earlier in India as it was condemned in the Vedas, Upanishads and the Smriti literature. As these are considered to be the sources of our laws, abortion is considered as an illegal practice in the society from a long period of time. The legislature of the country realized that abortion is a human right and making it illegal means compromising with the health of the women with unwanted pregnancies. Therefore, The Medical Termination of Pregnancy Bill was passed by both the houses of the Parliament and assented by the then President of India on 10th August, 1971. The Statute was known as “The MTP Act, 1971”. With this law, the termination of the unwanted pregnancies was legalized but this was not the case with all the types of the pregnancies. As per the Act, the woman can get her pregnancy terminated only by the registered medical practitioner in the hospitals either regulated or approved by the Government for the purpose. Section 3 of the MTP Act, 1971 laid down some circumstances under which such unwanted pregnancy can be terminated. Those are:
i) When there is danger to the life or risk of any kind on the health of the women.
ii) When the pregnancy arises from kind of crime such as rape etc.
iii) When there is risk that the child going to be born would suffer from any kind of physical or mental malformation.
It is also pertinent to mention that the pregnancy cannot be terminated without the consent of the expecting mother, except for the case when the pregnant mother has not completed eighteen years of age or is lunatic. In such circumstances, the consent of the guardian is required.
Abortion as a Fundamental Right under the Indian Constitution
Everyone has the right to life and liberty under article 21 of the Indian Constitution. This article is very wide in its context and is interpreted by various jurists and judges in various aspects. These decisions are influenced by the landmark judgment Roe v. Wades of the U.S. Supreme Court. It was held by the Court that State cannot restrict a woman’s right to abortion during the first trimester. The state can regulate such abortion during the second trimester considering the mental as well physical health of a woman. The right to abortion is considered as fundamental as well as a human right. In the case of Justice K.S. Puttaswamy v. Union of India, it was specifically recognized by the apex court that it is the constitutional right of women to make reproductive choices, as a part of personal liberty under Article 21 of the Indian Constitution. The Medical Termination Act, 1971 also declares abortion as a qualified right.
It was also mentioned in the case of Suchita Shrivastava v. Chandigarh Administration, that each woman holds reproductive rights including woman’s entitlement to carry a pregnancy to its full term, give birth to the children, raise them and these rights are the parts of a woman’s privacy, dignity and bodily integrity. As abortion is an implied fundamental right, the aggrieved party can approach judiciary in case of its violation. As per the law, a pregnancy cannot be terminated in the 24th week as it involves risk to the health of the mother as well. But in exceptional cases, it is the discretion of the judges relying on the reports and suggestions of the Medical Board, whether to allow the abortion or not. Women have every right over their own bodies and it cannot be transferred to their families or the state. These reproductive rights are also recognized by the United Nations International Conference on Population and Development. These rights include access to contraception, the right to a legal and safe abortion, the right to make decisions concerning reproduction free discrimination, coercion and violence, the right to subject to harmful practices such as the coerced bearing of children and equal entitlement of LGBTQ persons to the same sexual and reproductive health services.
Cases relating to abortion in India
Dr. Nikhil D. Dattar & Ors. v. Union of India
Facts of the case
The petitioner was in her 22nd week of pregnancy when her doctor discovered signs of severe fetal abnormalities. The doctor suggested her to wait for two more weeks to confirm the diagnosis. In the 24th week of her pregnancy the test was performed again and the fetus was diagnosed with the congenital complete heart block. The doctor then suggested her to undergo an abortion. But as the termination of the pregnancy was against the provisions of The Medical Termination of the Pregnancy Act, 1971, the doctor along with the doctor sought judicial authorization from the Bombay High Court. A petition was filed and came up for the hearing in the High Court of Bombay on 29th July, 2008. On the first hearing the court directed the Chief Medical Officer/ Dean of J J Hospital to form a committee of gynecologists and pediatricians in the field of Cardiology to submit a report of the examination of the petitioner on the aspect of the termination of the pregnancy.
Observations from the Report The report was prepared by the doctors comprising one gynecologist, one cardiologist and one pediatrician. Following observations were made by the doctors:
i) The petitioner was 24 weeks pregnant.
ii) The fetal echocardiogram reports can be accurate in observations upto 80 to 85% of the actual findings.
iii) Sonographic examination shows complete heart block with a ventricular rate of 50-55 per minute and heart is structurally and functionally normal.
iv) Great arteries are in mal position (L-malposition) without any other structural defects and it is viable to normal life provided there are no other structural anomalies in the heart.
v) In the echocardiogram done outside, no other structural anomalies are identified.
vi) Only a small percentage of kids will be symptomatic and will require implantation of the pace make costing less than one lakh of rupees which will be replaced by adult pacemaker which would make it easier for the baby to lead a normal life
The committee also stated that there are least chances where the child born will be handicapped or incapacitated.
Arguments on the behalf of the petitioners
The petitioners argued that as per the results of the medical examinations, the child in the womb of the petitioner was suffering from the heart blockade and as per the reports there were chances that the child born out of pregnancy would be either handicapped or incapable. They also argued that as per Section 3(2)(b)(ii) of The Medical Termination of Pregnancy Act, 1971, if there is any substantive risk to the life of unborn child or the result of the pregnancy will be a handicapped or incapable child such pregnancy can be terminated.
Arguments on the behalf of the State
The counsel representing the state argued that the pregnancy of the mother cannot be terminated as it is against the provisions of the Medical Termination of Pregnancy Act, 1971. The Act specifies certain circumstances under which the termination of pregnancy is prohibited. It was also argued that the report of the Medical Board stated that there are maximum chances of the child being born healthy. Therefore, the termination of pregnancy without any cause should not be allowed at such a stage.
Judgment of the Court
The Hon’ble High Court of Bombay in the status quo dismissed the petition made by the petitioners to terminate the 24 weeks pregnancy as it was discovered that the child if born would be incapable or handicapped. The Court stated that such pregnancy could not be terminated because as per the report presented by the gynecologist, cardiologist and pediatrician, there are least chances of the child being born as a handicapped or incapable. It was also held that the report submitted by the doctor on behalf of the petitioners did not mention any serious physical or mental illness that may risk the life of the child. Also putting reference to the section 3(2)(b)(ii) of the Medical Termination of Pregnancy Act, 1971, that the petitioners put forth, the court held that nowhere in the provision it has been described that the termination of the child may be done after 24th weeks of the pregnancy. If any such step is taken by any doctor or any of the family members of the pregnant lady, in that case those persons are punishable under Section 313 of the Indian Penal Code, 1850.
It was also stated that the major task of the judiciary is to interpret the laws and not to make them. The Court also referred to the judgment of the Apex Court in Divisional Manager, Aravali Golf Club & Anr. v. Chander Hass. & Anr. that the judiciary cannot encroach into the domain of the legislature or executive. Also referring to the judgment of the Apex Court in the case of P. Ramchandra Rao v. State of Karnataka, it was ruled that the doctrine of separation of power envisages that the legislature should make laws, executives should execute it and the judiciary should settle disputes in accordance with the existing laws.
In my view, the judgment given by the High Court of Bombay was not reasonable and was subject to criticism. Every woman should have the right to decide whether she wants to bear and deliver the child or not. It should be her discretion. Though there was a delay in the request for the termination, as soon as the doctors and the petitioners discovered the abnormality of the child, a petition was filed in front of the court. The medical examination of the woman by various doctors clarified the point that even though the child will be born he/she would not be able to lead a healthy life. The chance of the death of the child at an earlier age was a possibility that was pointed out by the doctors. The denial of High Court of Bombay to terminate the pregnancy of the petitioner did not lead to the healthy delivery of the baby instead the immediate effect was the miscarriage of the petitioner due to the death of the fetus in womb.
Surjibhai Badaji Kalasva v. State of Gujarat
Facts of the case
A writ petition was filed by the petitioner Mr. Surjibhai Badaji Kalasva on behalf of her 13 year old daughter who was sexually assaulted by the accused. The accused was the student of 8th standard in Ashram Shala at Vadari village. The victim did not disclose the incident to her parents earlier. Later the petitioner and his wife noticed some physical changes such as growing of the victim’s stomach in an abnormal way. The victim also complained about the pain and discomfort in her stomach. The petitioner took the victim to the Government Hospital at Vijaynagar and upon medical examination it was found that the girl was pregnant. After the report clarified the pregnancy, parents of the victim inquired about the incident. She confessed that she was sexually assaulted by the accused. At the time of the medical termination of the pregnancy, the victim was already conceiving the fetus of age 25-27 weeks.
Proceedings of the Sessions Court
The petitioner along with the victim filed a case in the Sessions Court for the termination of the pregnancy. The case was dealt with by the In-charge Special Judge (POCSO) and the 2nd Additional Sessions Judge at Himmatnagar. An order was passed by the respective judges to the Civil Hospital, Himmatnagar to form a panel of three doctors who can give reports about the fetus and the victim after proper medical examination. As per the order of the court, the team of three doctors conducted a medical examination. The doctors in their report stated that the victim was conceiving a 30 weeks and 1 day fetus. They also stated that the termination of the fetus at this time was against the provisions of The Medical Termination of Pregnancy Act, 1971. If the termination is done in spite of the fact, there may be foetal or maternal life risks.
The father of the victim approached the Hon’ble High Court through writ petition under article 226 of the Indian Constitution as there was a delay in the decision of the Sessions Court.
Result of the Medical Examination
The court ordered the doctors who presented the report during the proceedings of the Session’s court to be present in the court. After getting through the report, the court suggested that a panel should be made to know about the solutions for the present medical situation. The panel comprises five doctors from B.J. Medical College and Civil Hospital, Ahmedabad, who invested in the case.
After having the medical examination, the doctors clarified that the victim was 7 and half month pregnant. Her blood pressure, sugar level and other findings were found normal. The doctors stated that termination of the pregnancy at this stage was against the provisions of The Medical Termination of Pregnancy Act, 1971. They also stated in the report that the option of the termination of the pregnancy should be totally ruled out. They should do so because it would endanger the lives of both mother and the baby. The foetus weighed 1.7 kg and therefore the chance of survivability of the baby is high.
It was the suggestion of the doctors that, as the age of the victim is 13-14 years, she would not be able to deliver the baby normally. Therefore the process of Caesarean should be carried out. They also explained that as the delivery would be premature, the child born will require proper care. If the baby is not accepted by the victim or her parents then it would either be given to the State or legal guardian.
Arguments on behalf of the petitioner
The learned counsel on the behalf of the petitioner contended that no pregnancy can be terminated against the consent of the woman. In the same way, no woman can be forced to conceive a baby if she wants to terminate it. It should also be taken into consideration that the circumstances in which the victim conceived was not normal. In such cases, no woman should be compelled to continue with the pregnancy. It was also contented on the part of the petitioner that if the rights of a mother and rights of an unborn child are in conflict then the rights of the mother shall prevail as per the unambiguous language of the section 5 of The MTP Act.
The choices made available to the victim under the law were not allowed to be entertained because of the negligence on the part of medical experts and the investigating officers. The fetus could have been terminated at the time of the initial medical examination when the fetus was less than 20 weeks. In the present case, as the girl is minor only the consent of the parents were required. The counsel also laid down the case of Bashir Khan v. State of Punjab & Haryana, where the courts have stated that approaching courts in such matters is just a waste of time. He also stated that all the people including police officers, medical officers, lawyers, or the courts shall be well versed with the provisions of law. Time is the very essence in such crucial matters and hence, any remedy available is to be communicated and provided to the petitioners in case of termination of pregnancy. The counsel also gave the reference of the above mentioned case and stated that the judicial officers must be proactive in such cases. Even though the consent of the legal guardian is required for the termination in case of minor but the consent of the conceiving mother is also crucial.
It was further contended by the counsel that in the case of Murugan Nayakkar vs. Union of India and Ors, Hon’ble Supreme Court allowed termination of the pregnancy of a 13 year old girl under the similar circumstances wherein she was allegedly raped. It was stated that as the girl has already suffered from mental trauma, the court could not further traumatize the victim.
Therefore, the termination of the pregnancy of the victim should be allowed by the court.
Arguments on behalf of the State
The counsel representing the state contended that it is not advisable on the part of the doctors to terminate the pregnancy at such a stage. The victim is conceiving a 31 weeks foetus, which is almost a complete baby. The termination of pregnancy at such a stage is not only against the law but it would risk the life of the mother as well. The counsel also stressed upon the point that the doctors have clarified that if the delivery is performed at this stage, the chances of the baby being alive is 99%. It is requested to the court to assist the family till the end but termination is not an option. Even though, the girl is a rape victim, the termination of pregnancy at such stage would only add to her grief and sufferings.
The counsel further contended that Hon’ble Supreme Court in the case of Suchita Srivastava & Anr. v. Chandigarh Administration, held that it is clear from the language of the Indian laws that the termination of the pregnancy is only allowed if certain conditions of The Medical Termination of Pregnancy Act, 1971 is fulfilled. The laws of abortion in India are inspired from the abortion laws of United Kingdom. Although every woman has right to abortion under the broader ambit of article 21 of the Indian Constitution, but it is also the responsibility of the state to work in the interest of the prospective child. This is the only reason why such provisions have been laid down by the legislature under the Medical Termination of Pregnancy Act, 1971. It was held by the court that the consent of the mother cannot be diluted or neglected as this would lead to the social evils in the society like sex-selective abortions. This would also mislead the provisions of the Act.
The counsel also referred to the case of Janak Ramsang Kanzariya vs. State of Gujarat & Anr, where the Hon’ble High Court denied the termination of pregnancy of the rape victim as there was a danger to the life of the minor girl. Further referring to the case of Alakh Alok Srivastava vs. Union of India & Ors. Hon’ble Supreme declined the termination of a 32 weeks old foetus on recommendations made by the Medical Board.
The counsel pleaded the non termination of pregnancy on the basis of all the arguments and the referred cases.
Judgment of the Court
The Hon’ble High Court in the present case denied the termination of the pregnancy as if it would have been performed, it would be against the provisions of the law. Also, it was not possible to terminate the foetus because it was already 31 weeks at that particular time. The court along with the judgment gave particular guidelines as to the proper care and protection of the victim as well as the prospective child.
Those guidelines were as follows:
- A periodic check of the victim is to be done for the remaining one and half months under the guidance of Legal-Cum-Probation Officer. It should also be noted that the victim should be brought to the Civil Hospital Himatnagar 10 days prior to the date of delivery. A proper care is to be taken during that period.
- Each and every facility is to be provided to the victim by the hospital including a separate room for the parents of the victim. In case, if the victim and her parents decide to give up the child for the adoption then the procedure of such adoption should be made by involving any officials of Central Adoption Resource Authority or any other institution.
- The court directed the Principal Secretary of the Department of Health and Welfare to pay Rs. 1 lakh to the parents of the victim for medical expenses. If the petitioner has any bank account then the money should be sent to his bank account, if not, provided immediately. The petitioner can also reach to the State Legal Services Authority for any further help.
- The facility of counseling to be provided to the victim at home itself, unless it is necessary to take her to the hospital.
- The records of the victim as well as the new born baby should be kept by the hospital authorities in a sealed cover after the discharge of the victim.
- The victim is to be treated sympathetically when she visits for the routine check up and counseling. The counseling should be provided to her according to her mental health and requirement.
- The amount awarded to the victim by the court is in addition to the amount specified in the Code of Criminal Procedure.
- The court also advised the Central Government to come up with an amendment in the Medical Termination of Pregnancy Act, 1971 so that the words regarding the prosecution of the doctors can be specific and clear. The termination of pregnancy in good faith is permitted and does not constitute any offence under the Medical Termination of Pregnancy Act, 1971.
- A seminar should be organized for the Investigating Agencies, Doctors, Lawyers and Judicial officers to make all the people aware of the method of counseling of victims in such cases. This is to be done to make them aware about the urgency and sensitization of the situation in the cases of rape victims. These officers should also make a report and submit it to the legal authority responsible for the concerned matter.
- The court also stated that there is a need for the Judicial Officers of the subordinate judiciary to be aware of the provisions of the Medical Termination of Pregnancy Act, 1971. The court also ordered the subordinate judiciary to make the woman aware of her choice of termination of pregnancy in the case where the pregnancy is of less than 20 weeks.
- The counsel representing the victim should not disclose the identity of the victim in the headnote of the petition under any circumstances. If any person found doing the same, would be charged for the contempt of court and section 228A of IPC.
- It should also be taken into consideration that the victim is in 8th standard. The state may take responsibility that the victim does not give up her study or face any discomfort in going to school.
- The Investigating officer should take necessary steps for the identification of DNA.
In my opinion, the judgment given by the court could have been something different if the proceeding of the court would have an appropriate pace in resolving the matter. Although every woman has the right to choose whether they want to conceive or not, the state could not neglect the consequences that may occur from the termination of the pregnancy. The cases where the mother is a rape victim has the option of termination without any other justification. But in the present case, it was too late for the pregnancy to get terminated as at this stage a foetus gets developed into a baby and its brain and heart start working. The delay in the proceedings of the subordinate court led the life of the victim into trouble. The court had no option but to reject the request of termination of the child. This judgment was a milestone as futher guidelines have been laid by the court for the subordinate courts so that mother in such cases has the proper availability of her rights for abortion. The Hon’ble High Court gave the decision by taking the future endeavors into consideration.
This research paper is presented to make the woman aware of their rights and choices during pregnancy. It is the choice of every woman whether she is ready for the responsibility of bearing a child or not. Even in the era of technology and development, there are numerous cases where woman suffer due to proper facilities of abortion. There have been various instances where a woman has to face various external and emotional pressure either to bear the child or to terminate it. The paper analyzes the conditions in which a woman may or may not terminate the child with the help of various case laws. Various suggestions and guidelines laid down by the court have been presented.
- Right to Abortion by Manisha Garg’ <http://www.legalserviceindia.com/articles/adp_tion.htm>
- India’s Abortion Laws Need to Change and in the Pro-Choice Direction’ <https://thewire.in/gender/abortion-
- ‘The Niketa Mehta case: does the right to abortion threaten disability rights?’ by Neha Madhiwalla <https://ijme.in/articles/the-niketa-mehta-case-does-the-right-to-abortion-threaten-disabili ty-rights/?galley=html>
- ‘A Womb of One’s Own: Privacy and Reproductive Rights’ by Arijeet Ghosh and Nikita Khaitan <https://www.epw.in/engage/article/womb-ones-own-privacy-and-reproductive-rights
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