SC Breaks Ground With Abortion Order, But How Have Courts Viewed It in the Past?
Various courts of law have expressed divergent views when it comes to termination of pregnancy.
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“The benefits under the (Medical Termination of Pregnancy) Act cannot be denied to her only on the basis of her being unmarried,” the Supreme Court said on Thursday, 21 July, in an interim order allowing an unmarried woman to abort her 24-week pregnancy.
The Court, however, added that the woman can undergo abortion subject to the All India Institute of Medical Sciences, Delhi concluding that termination will not cause risk to her life.
The bench of Justices DY Chandrachud, Surya Kant and AS Bopanna in their order, found that the Delhi High Court adopted an “unduly restrictive” view of the Act when they denied the woman permission to terminate her pregnancy, in her initial plea filed before the high court.
“Prima facie, quite apart from the issue of constitutionality which has been addressed before the High Court, it appears that the High Court has taken an unduly restrictive view of the provisions of clause (c) of Rule 3B,” the top court said in its order.
Essentially, what the Supreme Court was pointing out was that a narrow reading of the Act meant that unmarried women would be denied an abortion even if they met conditions under which a married woman could secure one, a discrimination which Parliament could not have intended.
The reasoning of the court was as follows:
Clause c of Rule 3B of the Rules to the MTP Act says that “change of marital status during the ongoing pregnancy (widowhood and divorce)” as a valid ground for medical termination of pregnancy
Even though clause c of Rule 3B talks about women who conceived while being married, the Act was amended with the parliamentary intent to cover unmarried women too
This is evident from the replacement of the words “married woman” and “husband” with the words “any woman” and “her partner” in explanation of Section 3(2) of the Act in the 2021 amendment of the Act
Rule 3B explicitly recognises other categories of women such as divorcees, widows, minors, disabled and mentally ill women and survivors of sexual assault or rape.
The top court also noted that woman's right to reproductive choice is an inseparable part of her personal liberty under Article 21 of Constitution.
“She has a sacrosanct right to bodily integrity,” they said.
The Delhi High Court had, on their part, suggested that the petitioner be kept “somewhere safe” until she delivers the child who can subsequently be given up for adoption.
Thus, they had refused to pass an order permitting termination of pregnancy in her case, and the woman had urgently approached the Supreme Court with her plea given the progression of her pregnancy.
Her case simply was that she was in a consensual relationship and in the month of June 2022 she learnt that she was pregnant. As her relationship had failed, and stating that she holds a BA degree and, in the absence of a source of livelihood, she would be unable to raise and nurture a child, she had sought permission to medically terminate her pregnancy.
Larger Background: How Have Courts Viewed Abortion When Sanction Required in the Past?
The role of the courts in allowing abortions is a limited one: women don't have to approach the courts for permission to do in every case.
The Medical Termination of Pregnancy Act permits termination up to a period of 24 weeks, with the approval of one medical professional required for termination prior to 20 weeks, and two medical professionals for termination between 20 and 24 weeks (along with certain additional conditions specified in the Rules for the latter category).
The medical professional(s) have to give an opinion in good faith that:
"(i) 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;
or (ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality."
Explanation 1 to Section 3(2) of the MTP Act says that when it comes to pregnancies up to 20 weeks, where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
Thus most cases that make it to our courts are those which have crossed the 20 week mark and there is a dispute over whether the case fits within the Rules, or they have been unable to secure permission from medical professionals prior to that without appropriate reason.
The decisions of the apex court and the high courts in such cases are not easy to predict (as the Delhi High Court's decision showed), but looking at some of the major cases can offer some guiding principles.
The Importance of the Pregnant Woman's Decision
The top court had in this latest order quoted a 2009 judgment — (name withheld) v Chandigarh Administration — as saying:
“There is no doubt that a woman's right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods.”
This 2009 case is, despite this seemingly heartening confirmation of women's autonomy, a little bit more complicated than it may seem
This was a case pertaining to a woman with intellectual disability (as per High Court ordered findings by an Expert Body, the woman suffered from “mild to moderate mental retardation (sic)”), who had become pregnant as a result an alleged instance of rape that took place while she was an inmate at a government-run welfare institution in Chandigarh.
After the discovery of her pregnancy, the Chandigarh Administration which had sought approval for the termination of her pregnancy, citing her intellectual disability and that she was also an orphan who did not have any parent or guardian to look after her or her prospective child.
The Supreme Court, however, found that the woman “had clearly expressed her willingness to bear a child (sic)”, and observed:
“Her reproductive choice should be respected in spite of other factors such as the lack of understanding of the sexual act as well as apprehensions about her capacity to carry the pregnancy to its full term and the assumption of maternal responsibilities thereafter.”
The Expert Body findings had said: “She has no particular emotions on account of the pregnancy alleged to have been caused by way of rape/un-willing sex. She is happy with the idea that she has a baby inside her and looks forward to seeing the same.”
They had also, however, noted: “She has grossly limited perception about bringing up a child and the role of an ideal mother.”
On the question of who will look after the child — given the woman’s disability and absence of a guardian — the court said “the Chairperson of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities (constituted under the similarly named 1999 Act) has stated in an affidavit that the said Trust is prepared to look after the interests of the woman in question which will include assistance with childcare.”
While there might be concerns that the woman may not have been able to truly understand the implications of continuing her pregnancy, it is important to note that the court even in such cases was emphasising the importance of the woman's autonomy in such matters.
But not everything in this judgment was perfect. In the 2009 order refusing to accept the Chandigarh Administration's plea for an abortion, the court also said that “the termination of pregnancy has never been recognised as a normal recourse for expecting mothers”.
This is concerning because statements such as this one point towards a presumption of pregnant women being mothers first, and individuals second, and have an effect that is the opposite of reaffirming their autonomy.
The reason why there might be concerns over a pregnancy going ahead where the woman does not have full intellectual capacity to understand the implications was illustrated well in a Himachal Pradesh High Court in 2017.
A 19-year-old girl with an intellectual disability wanted to go ahead with her pregnancy, but a medical board confirmed that it was risky for her to complete the normal period of pregnancy and deliver the child on the due date.
If the pregnancy was continued, the foetus may also suffer severe cognitive and motor impairment, the court noted from the medical records presented to it. As a result, it allowed an abortion in this case past the 20-week point, subject to the consent of the girl's parents, who were her legal guardians.
Rape as a Ground for MTP Even After 24 Weeks
Explanation 2 to Section 3(2) of the MTP Act now states that when it comes to pregnancies up to 20 weeks or from 20-24 weeks, if the pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Even before the 2021 amendment, rape survivor had a right to terminate their pregnancy, but there were question marks over whether this right could be invoked at any stage in the pregnancy.
In 2017, the Gujarat High Court permitted a 16-year-old rape survivor to medically terminate her pregnancy, stating that: “Having regard to the fact that the victim is aged sixteen and is carrying pregnancy of above twenty weeks, the same will cause lot of mental stress and grave injury to her mental health.”
In 2020, the Rajasthan High Court allowed a minor rape victim to terminate her 25-weeks-old pregnancy – a single-judge bench had initially refused her permission as this was beyond the 24-week limit. The division bench of the Rajasthan High Court, however, said:
“The right of a child rape victim to make the reproductive choice of terminating the foetus heavily outweighs the right of the child in womb to be born even where the pregnancy is at an advanced stage."
What About Other Cases?
But what if the woman seeking abortion is an adult with no intellectual disability, who had consented to the act of intercourse which led to the pregnancy? Here we see a divergence of opinion from the high courts.
In High Court on its Own Motion v State of Maharashtra, the Bombay High Court in 2016 had clearly and effectively held:
“If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health.”
But that is not how other courts have always viewed it.
For instance, in a September 2021 case, the Gwalior Bench of Madhya Pradesh High Court refused to permit medical termination of pregnancy (of more than 20 weeks) of a 19-year-old girl who had alleged, that on the pretext of marriage, a man whom she loved, had committed rape on her.
She further alleged that the man had promised her that he would marry her, and on that pretext, had been in a physical relationship with her. But when she got pregnant, he refused to keep his promise of marriage, and thus, she wanted to terminate the pregnancy that had ensued.
The court, however, refused permission to her and said: "The petitioner is aged about 19 years, therefore, she is mature enough to realise the consequences of consensual sex without any precaution."
The Bombay High Court had, however, felt differently in a very similar matter.
The case before them was of a 20-week pregnant woman had contended that her ex-lover had sexually exploited her on the pretext of marrying her and thus cheated her.
She had gone on to file a case under Section 376 (punishment) of the Indian Penal Code against the man, and had approached the High Court seeking termination on the grounds that she does not want to shoulder the stigma attached to unwed mothers for the rest of her life.
The Bombay High Court had thus, permitted her to terminate her pregnancy at her own risk, while reminding her, however, the she had an option to give the child up for adoption.
“In the present social milieu in India, we can visualise the future complications she may have to face in her social and married life if she would be deprived of now to exercise her reproductive choice, which has its origin in her fundamental right to life, liberty and human dignity,” they had said.
The Supreme Court's decision in its recent judgment will hopefully prevent cases like these from having to be taken to the courts, as it ensures that unmarried woman who suffer a change in relationship status or failure of contraception can also secure a termination of their pregnancy, just like a married woman.
No Definitive Pattern, But The Recent SC Judgment Can Help
The Delhi High Court's decision in the recent case and the concerning remarks of its chief justice while the case was going on, show how it is hard to glean a set pattern in how various courts of the country will construe access to medical termination of pregnancy in contentious cases.
Often, it appears, it boils down to the judges’ individual perceptions of childbirth and consent.
In any case, the most recent order in this regard passed by the top court is expected to help tremendously in establishing a woman’s choice over her pregnancy.
Considering that this judgment comes from the highest court of the country, it will have far-reaching impact both as a legal precedent and as a reminder of the fact that unmarried women have the same constitutional rights as married women, and that the “normal recourse” should be for each woman to individually decide for herself what she wants to do.
Of course, the existing Act doesn’t automatically allow this. For starters, it still accords medical professionals more importance, in a sense, than it does women.
Crucially, the Supreme Court appears to have not just taken a pro-liberty stand in this case, but also held that unduly restrictive interpretations of the MTP Act and Rules should not be adopted by the courts.
This will hopefully mean that even where there is not a clear-cut precedent in cases to come, the courts will adopt fair and empathetic interpretations of the law, which should ensure a woman is able to exercise her autonomy and choice.
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