Question: What is your view on PIL in SC for full rights to women to have abortion and whether or not to continue with pregnancy?
Answer: No right is absolute. Every right generally has some restrictions. With regard to the right of a woman to have full freedom with regard to abortion and whether or not to continue with pregnancy, there are certain restrictions in the Medical Termination of Pregnancy Act, 1971 (MTP Act), and there are certain rulings of the Supreme Court too in that regard.
I may point out that under Section 3 of the said MTP Act, termination of pregnancy beyond 20 weeks is not permissible.
At the same time, from the language of Section 5 of that Act, it appears (though the language is slightly vague) that in case of emergency, where the doctor is of a good faith opinion that in order to save the life of the woman, immediate termination of pregnancy is necessary, he can terminate the pregnancy beyond the said period too.
It is noteworthy that India has ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1993 and is under an international obligation to ensure that the right of a woman in her reproductive choices is protected. Article 11 of the said Convention provides that all State parties shall ensure the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. Article 12 of the Convention stipulates that State parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on the basis of equality of men and women, accesses to health care services, including those related to family planning.
In fact, the Statement of Objects & Reasons (SOR) of the MTP Act clearly states that the law relating to termination of pregnancy was being relaxed from the British-made strict law in IPC with a view to avoid wastage of the mother’s health, strength and, sometimes, life. It was mentioned that the MTP Act sought to liberalise certain existing provisions relating to termination of pregnancy (1) as a health measure—when there is danger to the life or risk to physical or mental health of the woman; (2) on humanitarian grounds—such as when pregnancy arises from a sex crime like rape or intercourse with a lunatic woman, etc., and (3) eugenic grounds—where there is substantial risk that the child, if born, would suffer from deformities and diseases.
Let me now come to the issues raised.
Please appreciate that there are two competing rights here. One is the right of the woman to terminate her pregnancy as per her will, as is claimed in the petition before the Supreme Court. As per this view, the woman has full freedom over her body and she should be free to take a decision on whether or not to continue with pregnancy and whether to terminate it.
The other competing / opposite right is the right of the prospective child who is likely to be born. At 20 weeks, the child is already developed inside the uterus of the woman to a sufficient extent. So, is it not the duty of the State to protect the life of such prospective child?
There is also the issue of safety of the pregnant woman if the pregnancy is terminated beyond a particular time limit. Her life may be completely in danger, along with the life of the prospective child.
There is also the issue of sex determination and the termination of pregnancy at late stage merely because the sex of the prospective child is not as per the liking of the woman (or her family). It is a well know fact of life in India that many pregnancies are terminated (though illegally) merely because it is found that the child to be born is a girl.
It is noteworthy that usually between 18 and 22 weeks of pregnancy, sex or gender of the child can be ascertained with the help of ultrasound machines.
Therefore, if termination of pregnancy is permitted beyond a certain limit, there is a danger that the family members of the woman may pressurize her to terminate the pregnancy in the name of “freedom of woman”. So, outwardly, it may appear that the pregnant woman herself wants to terminate pregnancy. But, in fact, it may be due to family pressure. In fact, even if the woman herself wants to terminate pregnancy due to gender of the baby, it is equally objectionable, though in such a case usually the woman would not like to do so.
So, it is not merely the right of the pregnant woman to have full freedom on the issue of termination of pregnancy. There are other competing rights and safety to life issues (including that of the baby yet to be born) and the social problem of deliberate killing of female foetus.
As I mentioned above, no right is generally absolute. Every right is generally encapsulated by some restrictions.
Now, in this regard, I may point out that this issue has already been dealt with by the Supreme Court in the case of Suchita Srivastava v. State (UT of Chandigarh), (2009) 9 SCC 1, wherein it was held that:
“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. Furthermore, women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children. However, in the case of pregnant women there is also a “compelling State interest” in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the provisions of the MTP Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices.” [Emphasis supplied by me]
Therefore, the Supreme Court has clearly held that there is a competing right of the State to protect the life of the prospective child. So, it is not merely the right of the woman concerned only to take a decision to terminate her pregnancy at any time, as per her will.
Recently, in the case of Z v. State of Bihar, (2018) 11 SCC 572 : AIR 2017 SC 3908, a somewhat similar opinion has been expressed by the Supreme Court, though the opinion was a little bit vague in this case. In this case, the Supreme Court refused to allow termination of pregnancy beyond the stipulated period under law, in view of medical report of AIIMS that there was a risk to the life of the woman if the pregnancy was terminated at that stage.
On the other hand, in another recent case, A v. Union of India, (2018) 14 SCC 75 : AIR 2017 SC 4037, the Supreme Court allowed the medical termination of 25/26 weeks of pregnancy of a woman (which is beyond the period permissible under Section 3 of the MTP Act), on the ground that as per the medical report, continuation of foetus posed grave danger to mother’s life and foetus suffered from incurable medical conditions making it incompatible with life outside womb, and also because no additional risk was involved to the woman’s life if she was allowed to undergo termination of her pregnancy.
So, keeping in view the aforesaid factual and legal principles, I am of the considered opinion that it is not desirable to give women “full freedom” in the matter of termination of pregnancy, as there are competing rights and other serious considerations of health, safety and life of the woman and the prospective baby too. Moreover, if such full freedom is given, it is likely to be misused for killing the female foetus in many cases. Accordingly, some reasonable restrictions are necessary for the exercise of this right by the pregnant woman, much in the way all other rights are generally subjected to some reasonable restrictions.
