Is a Woman Allowed to get Abortion In India?

THE LAW ON THE MEDICAL TERMINATION OF PREGNANCY: Is a Woman Allowed to get Abortion In India

Mukul Bansal, 15 November

You cannot have maternal health without reproductive health. And reproductive health includes contraception and family planning and access to legal, safe abortion.

The citizens of India are invested by the Constitution of India with certain specific fundamental rights which are enshrined under Part III from Article 12 to Article 36 of the Constitution. These fundamental rights are like basic human rights which must be available to all the citizens for their growth as well as personal development. The Constitution of India is the grunt norm of the Indian legal system which means that all the statutes as well as the State derive its power from the provisions of the Constitution. Any statute or action of the state which is contrary to the provisions of the Constitution of India shall be judicially scrutinized by the Hon’ble Courts in India and shall be struck down in case found to be violating those provisions. Hence, it can be said that the Constitution of India is the ultimate authority of law in the Indian legal system.

Out of the various fundamental rights that are vested by the Constitution in its citizens, the right to life and personal liberty is of utmost importance and is often referred to as the heart of the Constitution. This fundamental right guarantees the protection to the citizens from the arbitrary and unfair action on the part of the state which tends to deprive them of their life and personal liberty. Article 21 of the Constitution of India has been the subject of interpretation of the Hon’ble Courts in a plethora of cases which has always resulted in the enlargement of the scope of this article because of the liberal interpretation given by the Courts. Certain rights that have not been expressly provided under Part III of the Constitution have been elevated to the level of fundamental rights by reading those rights into Article 21 of the Constitution. The rationale behind giving such a wide interpretation of this article is to ensure that the individual does not have a mere animal-like existence.

One such right which has been provided to the women by such liberal interpretation given by the Court is the right to make reproductive choices. In the case of Suchita Srivastava and another vs. Chandigarh Administration [(2009) 9 SCC 1][1], the Hon’ble Supreme Court while discussing the case of medical termination of pregnancy of a mentally retarded woman held that the women have the liberty to decide whether they want to procreate or do not want to procreate. It is the right of the women to abstain from indulging in sexual intercourse or insist on the use of birth control methods of their choice if they do not want to procreate. However, if the woman is willing to give birth to a child, in that case, she has the complete right to take the pregnancy to its full term and subsequently raise the child. It was also held that the courts shall not pass the order of the termination of the pregnancy of the woman if she is willing to continue with her pregnancy and give birth to a child. In the case of Ram Avtar vs. State of Chhattisgarh [Writ Petition (Crl) No. 164 of 2020][2], it was held thatthe fact that the woman is a minor or mentally retarded person will not enable the court to pass orders terminating her pregnancy if the woman is willing to continue with the same.

Thus, liberty has been granted to the woman to make reproductive choices under Article 21 of the Constitution of India. However, this does not entitle the women to terminate the pregnancy without any compelling reasons because the state is also under an obligation to protect the life of the unborn child in the mother’s womb. Therefore, safeguards have been provided against termination of pregnancy without any compelling reasons by enacting the Medical Termination of Pregnancy Act, 1971.

Section 3 of the Medical Termination of Pregnancy Act, 1971 provides that the pregnancy of the woman can be terminated only if there is a grave injury to the health of the woman whether mental or physical, or a risk to the life of the woman because of such pregnancy. Also, if there is a substantial risk that the child would be seriously handicapped upon being born, in that case as well the permission can be granted to the woman to terminate the pregnancy. However, the pregnancy shall not be terminated without the opinion of a medical practitioner as to the existence of the above-mentioned circumstances in case the gestation period does not exceed 12 weeks and without the opinion of two medical practitioners if the gestation period exceeds 12 weeks but does not exceed 20 weeks.

The explanation to the Section also provides that pregnancy caused because of the act of rape committed on the woman or because of failed contraceptive methods shall be presumed to cause a grave injury to the mental health of the woman thus entitling her to terminate the pregnancy. One thing of considerable importance which must be borne in the mind by the Court while deciding upon the case of medical termination of pregnancy is to pass such orders which are in the best interests of the woman[3].

This theory of best interests of the woman was developed by the Courts in Suchita Srivastava (Supra) case wherein the Hon’ble Supreme Court held that the Courts must act as a parens patriae of that woman who is unable to make a decision for themselves and pass such order which is in the best interest of the woman. Following this theory, various orders for the termination of pregnancy of a woman has been passed by the various High Courts as well as the Supreme Court in cases where the length of the pregnancy has exceeded even the statutory period of 20 weeks for the reason that the continuance of such pregnancy would have proved detrimental to the health of the woman [X and others vs. Union of India and others., W.P. (Civil) 81 of 2017; Tapasya Umesh Pisal vs. Union of India., W.P. (Civil) 635 of 2017; Mrs. Y Theclamma vs. Union of India and Ors., AIR 1987 SC 1210]. Thus, the Courts have may pass the order for the termination of pregnancy even beyond the period of twenty weeks if the best interests of the woman demand so.

Therefore, liberty has been provided under Article 21 of the Constitution of India to the woman to make reproductive choices for her and in exercising this right, the discretion of the guardian or the family members of the woman shall be of no consequence. The choice of whether to give birth to the child or not is entirely the discretion of the woman and she can exercise it subject to the safeguards provided under the Medical Termination of Pregnancy Act, 1971[4].

[1] https://indiankanoon.org/doc/1500783/

[2] https://indiankanoon.org/doc/136376560/

[3] https://www.thehindu.com/opinion/editorial/a-deliverance-the-hindu-editorial-on-pregnancy-termination-bill/article30695656.ece

[4] https://thewire.in/women/medical-termination-of-pregnancy-bill-amendments

Is a Woman Allowed to get Abortion In India