In this article, Ashwini Gehlot of Institute of Law Nirma University, Ahmedabad discusses the grounds on which the Court can Reject The Right To Abort An Unborn Child In India.
‘‘The right of a woman to choose to be a mother or not emerges from her human right to live with dignity which, falls within Article 21 of the Constitution.’’
Medical Termination Of Pregnancy Act, 1971
Before the Medical Termination of Pregnancy Act, 1971, a pregnancy could not be terminated in India without attracting penal sanctions under the IPC (Indian Penal Code, 1860). In 1971, the MTP Act was passed which gives a provision for termination of certain pregnancies by registered medical practitioners (RMP’s). In a way, the MTPA, 1971 weakened the rigours of the prevalent law, though abortion was not allowed for in all cases of pregnancy but rather just in particular cases.
Relevant Provisions Reproduced Verbatim
Section 3: When pregnancies might be terminated by (RMP’s):
- Despite anything contained in the Indian Penal Code 1860, a RMP shall not be liable for any offense under that Code or under any other law for the time being in force, if any pregnancy is terminated by him as per the provisions of this (i.e. MTPA, 1971) Act.
- Subject to the proviso of sub-section, a pregnancy may be terminated by a RMP.
- where the length of the pregnancy does not surpass 12 weeks if such medical practitioner is, or
- where the length of the pregnancy surpasses 12 weeks but does not surpass 20 weeks, if at least 2 registered medical practitioner is, of opinion, formed in common decency or good faith, that
- the continuation of the pregnancy would include a risk to the life of the PW or of grave injury to her physical or mental well-being; or
- there is a considerable risk that if the child were conceived, it would suffer from such physical or mental abnormalities to be genuinely disabled.
Explanation 1: Where the pregnancy to PW is occurred due to rape, the torment caused by such pregnancy shall be believed to result in grave injury to the mental well-being of the PW.
Explanation 2: Where any pregnancy happens because of the failure of any device or method utilized by any married woman or her husband with the end goal of restricting the number of children, the anguish caused by such undesirable/unwanted pregnancy might be continued to constitute a grave injury to the mental well-being of the PW.
- In deciding whether the continuance of a pregnancy would include such risk of injury to the health as is specified in subsection (2), the account may be taken of the pregnant woman’s real or reasonably predictable environment.
- (a) the pregnancy of a pregnant woman who is below 18 years or who is above 18 years but is a lunatic, shall be terminated only when the consent in writing of her guardian is taken.
(b)Save as otherwise proviso in clause (a), no pregnancy shall be terminated but with the consent of the PW.
Section 5: Sections 3 and 4 when not to apply:
- The provisions of section 4, and of section 3 as identify with the length of the pregnancy and the opinion of at least 2 RMP, shall not apply to the termination of a pregnancy by a RMP in a situation where he is of opinion, framed in good faith, that the termination of such pregnancy is promptly important to save the life of the PW.
- Despite anything contained in the IPC, if the pregnancy is terminated by an individual who is not an RMP then it will be considered as an offense punishable under that Code, and that Code shall, to this degree, stand modified.
It is clear from the above clauses that in India, termination of pregnancy was intended by the Legislature only in specific cases as a circumscribed activity. Regardless of this, innumerable abortions are done each year in India and a significant number are unlawfully induced. The figure for reported abortions in India amid 2010-11 was around 6, 20,472 while the unreported number is approximately 10 times this figure. The culprits escape punishment easily which reflects that the MTPA, 1971 is taken after more in the breach than the observance.
The MTP (Amendment) Bill, 2014
The Bill of 2014 proposes to supplant ‘registered medical practitioners’ with ‘registered healthcare providers’. All the more vitally, it aims to broaden the permissible period for an abortion to 24 weeks from 20 weeks if the healthcare provider believes that the pregnancy involves a considerable risk to the mother or the child. If considerable fetal abnormalities are identified, the amendment also permits an exception to the time limit for pregnancies to be terminated.
Supreme Court And High Court On Abortion
Consent
Suchita Srivastava and v. Krishnanan, 2009
The Supreme Court and the High Court of Madras have respectively affirmed women’s rights to choose in the context of continuing a pregnancy. In Suchita Srivastava, the Supreme Court clearly held that the state has an obligation to ensure a woman’s reproductive rights as a component of her Article 21 rights to personal liberty, dignity, and privacy.
Spousal consent
Samar Ghosh v. Jaya Ghosh, 2011
Held- “If the wife undergoes vasectomy (sic) or abortion without medical reason or without the consent or knowledge of her husband, such an act may lead to mental cruelty.” Here, this case added confusion to consent requirements by determining that when a wife terminates a pregnancy without her husband’s knowledge or consent, it may amount to mental cruelty, which is a ground for divorce. While this ruling does not change the consent required to perform an abortion, it does assume spousal “stake” in a woman’s reproductive health.
‘‘Spousal consent requirements reflect patriarchal norms that rob women of bodily autonomy and equality.’’
Analysis- While this decision does not change the requirements in Section 3 of the MTPAct, it does chip away at a woman’s autonomy by upholding a spousal interest in a woman’s decisions regarding her body.
Dr. Mangla Dogra & Others v. Anil Kumar Malhotra & Others, 2011
Held- Section 3(4)(b) of the MTP Act requires consent from just one person: the woman undergoing a medical termination of pregnancy. A husband cannot force his wife to continue a pregnancy.
‘‘Courts in India have confirmed that providers only require consent from an adult woman for an abortion. Husbands, boyfriends, brothers, parents, and in-laws, have no right to consent to termination or to refuse to consent to an abortion.’’
“It is the right of a woman to give birth to a child, but it is not the right of a husband to compel his wife to give birth to a child for the husband. A woman is not a machine in which raw material is put and a finished product comes out. She should be mentally prepared to conceive, continue the same and give birth to a child. The unwanted pregnancy would naturally affect the mental health of the pregnant women.”
Minors
Section 3(4)(a) of the MTP Act requires a guardian’s consent where someone under 18 years requests a medical termination of pregnancy. The chapter on rape includes a variety of judgments where parents requested a termination on behalf of their minor daughter in the wake of a rape.
V. Krishnan v. Rajan Alias Madipu Rajan & Another, 1993 (Madras High Court)
Issue- Does a minor rape survivor have the right to continue her pregnancy against her parent’s wishes?
Held- A minor rape survivor has the right to decide whether to continue a pregnancy or not.
“We cannot force a victim of violent rape/forced sex to give birth to a child of a rapist.”
D. Rajeswari v. State of Tamil Nadu & Others, 1996 (Madras High Court)
Issue- Can a minor rape survivor obtain a medical termination of pregnancy?
Held- A minor rape survivor who satisfies the requirements of Section 3 of the MTP Act can obtain a termination.
Minor rape survivors with 20+ week pregnancies
Chandrakant Jayantilal Suthar & Another v. State of Gujarat, 2015 (Supreme Court of India)
Issue- Can a minor rape survivor who is 24 weeks’ pregnant access medical termination of pregnancy
Held- The Supreme Court reviewed the medical opinion and allowed for termination if the girl consented. However, the Court noted that this was a particularly difficult decision because “Whatever be the circumstances in which the child was conceived, whatever the trauma of the young mother, the fact remains that the child is also not to blame for being conceived.”
“A rape victim shall not be further traumatized by putting through a needless process of approaching courts for taking permission.’’
Rape
Bhavikaben v. The State of Gujarat, 2016 (High Court of Gujarat)
Issue- Can an adult rape survivor undergo medical termination of pregnancy when she is more than 20 weeks pregnant?
Held- Yes. Applying the survivor’s best interests test in Chandrakant, the Court finds that where medical experts agree that the woman’s mental or physical health will be severely impacted by the pregnancy, she has a right to terminate.
Women in judicial custody
Halo Bi v. State of Madhya Pradesh & Ors., 2013, (High Court of Madhya Pradesh)
Issue- Does an incarcerated woman require consent from jail authorities to obtain a medical termination of pregnancy?
Held- An incarcerated woman does not have to seek consent from jail authorities to terminate her pregnancy.
Women in medical custody/ “wards of the state” –
Suchita Srivastava & Another v. Chandigarh Administration, 2009 (Supreme Court of India)
Issue- Can the state consent to a termination as a guardian for a “mentally ill” woman who was raped in her state-run facility.
Held- The Court must examine the facts. Where a woman is not a minor and has a “mild” mental illness, the Court has to ensure her reproductive rights, including the right to continue a pregnancy.
Anand Manharlal Brahmbhatt v. The State of Gujarat, 2015 (High Court of Gujarat)
Issue- Can the state consent to termination on behalf of a mentally disabled woman who cannot care for herself?
Held- Yes. Where a medical expert determines that a woman cannot make decisions for herself or understand that she is pregnant, the state may consent to termination.
Medical practitioner-
Dr. Jacob George v. The State of Kerala, 1994 (Supreme Court of India)
Issue- Can a homeopathic doctor who negligently performs a termination resulting in death be charged and sentenced under IPC Section 314?
Held- Yes, where a doctor is not trained in medical termination of pregnancy conducts the surgery, he or she can be charged under IPC Section 314.
Dr. Raj Rokaria v. Medical Council of India & Another, 2010 (Delhi High Court)
Issue- Is a doctor negligent if she performs a medical termination post-20 weeks when there is not an urgent risk to the woman’s life?
Held –Failure to complete MTP Act paperwork is enough to demonstrate negligence.
A woman could terminate her pregnancy at 24 weeks where there is a danger to the health of the mother.
Ms. X v. Union of India & Others, 2016 (Supreme Court of India)
Issue- Can a woman terminate her pregnancy post-20 weeks where the fetus has severe abnormalities?
Held- Based on the medical board’s determination that continuing the pregnancy would pose a grave threat to the woman’s mental and physical health, the woman may undergo termination under Section 5 of the MTP Act.
No Abortion On Demand Or Request
The MTP Act, 1971 does not confer or recognize any right of any person to perform an abortion or terminate a pregnancy. A PW can get her pregnancy terminated only under the circumstances mentioned in the Act as stated above.
Not A Tool For Birth Control
It has been held by the Madras (now Chennai) High Court that, ‘sec.3 of the Act is only an enabling provision to save the RMP’s from the purview of the IPC, 1860. Termination of pregnancy under the provision of the Act is not the rule and it is only an exception.
References
- http://shodhganga.inflibnet.ac.in. (n.d.). Criminal Law and Unborn: Indian Scenario. [online] Available at: http://shodhganga.inflibnet.ac.in/bitstream/10603/26532/12/12_chapter%206.pdf [Accessed 27 Jul. 2017].
- Sheikh, S. (2017). India’s Abortion Laws Need to Change and in the Pro-Choice Direction. [online] The Wire. Available at: https://thewire.in/134182/abortion-pregnancy-law-india/ [Accessed 27 Jul. 2017].
- Anon, (2016). ABORTION LAWS IN INDIA: A REVIEW OF COURT CASES. [online] Available at: http://file:///C:/Users/computer%20gallery/Downloads/1201702010854.pdf [Accessed 27 Jul. 2017].
- Mangla Dogra & Others v. Anil Kumar Malhotra & Others, 29 November 2011 (CR No. 6337/2011)
- Suchita Srivastava & Anr vs Chandigarh Administration on 28 August, 2009, CIVIL APPEAL NO.5845 OF 2009 (Arising out of S.L.P. (C) No. 17985 of 2009)
- Samar Ghosh v. Jaya Ghosh, Supreme Court, 26 March 2011 (Appeal (C) 151/2004)
- Krishnan v. Rajan Alias Madipu Rajan & Another, Madras High Court, 2 December 1993
- Rajeswari v. State of Tamil Nadu & Others, 24 May 1996 (Crl.O.P. No. 1862/1996):
- Chandrakant Jayantilal Suthar & Another v. State of Gujarat (Special Leave Crm. 6013/2015):
- Bhavikaben v. State of Gujarat, 3 and 19 February 2016 (Special Crim App 1155/2016)
- Halo Bi v. State of Madhya Pradesh &Ors.,16 January 2013, WP(C) 7032/2012: –
- Suchita Srivastava & Another v. Chandigarh Administration, 28 August 2009, SLP(C) 5845/2009:
- Anand Manharlal Brahmbhatt v. State of Gujarat, 28 July 2015 (Special Crim. App. No. 4204/2015)
- Dr Jacob George v. State of Kerala, 13 April 1994 (SCC (3) 430)
- Raj Rokaria v. Medical Council of India & Another, 25 November 2010 (WP(C) 7905/2010)
- X v. Union of India & Others, 25 July 2016 (WP(C) 593/2016)
