The Grounds of Abortion Prejudice the Rights of Women and Reproductive Autonomy

The right to have an abortion is a matter of individual conscience and conscious choice of the women concerned. [1]

The Grounds of Abortion Prejudice the Rights of Women and Reproductive Autonomy

Medical Termination of Pregnancy Act, 1971 was passed with an aim of liberalization of abortion laws as a result of the ‘Pro-choice Movement’ and to regulate the termination of pregnancy. The Section 3 of the Act states the grounds for the termination of pregnancy i.e.

  1. When the termination causes a risk to the life of a pregnant woman or causes a grave injury to her mental of physical health.
  2. When there is a substantial risk to the life of unborn child or the child suffers from some abnormalities.
  3. When the pregnancy is caused by a rape.
  4.  When the pregnancy is caused by the failure of contraceptive methods.[2]

The Act only recognizes the medical grounds for the termination of pregnancy ignoring all the non medical grounds like career, education, economic costs for raising a child and other similar grounds. It has been evident in various cases where the grounds have not been sufficient and the Court denied the termination of pregnancy. Moreover, in the long legal proceedings the time to abort is wasted which leads the women to forced pregnancies.

This is a hindrance to the fundamental rights of the women enshrined in Part III of the Constitution. The grounds violate the freedom of reproductive choices as a right to choose guaranteed under Article 19 of the Constitution and Article 21 as women have complete autonomy over their reproductive organs which can be treated as an extension of Right to Privacy guaranteed under Article 21 of the Constitution.

The Act is arbitrary as the plight of women is not considered in the grounds of pregnancy.  In various Judicial Developments the Judges usually implement the law and fail to widen its ambit to protect the rights of the pregnant women. It is been considered that the duty of the Court is to only check that the mentioned grounds are followed and they choose not to widen its sphere and include the other relevant grounds.

In the case of Suchitra Shrivastava and Anr v. Chandigarh Administration[3], it was held that reproductive autonomy is an essential part of Personal Liberty guaranteed under Article 21 of the Constitution and the question of consent of the victim was considered in the case and held it to be essential for termination of pregnancy.

In the case of Alakh Alok Srivastava v. Union of India & Ors[4]., a 35 year old was raped and because of which she became pregnant. Government authorities demanded parental or spousal consent for terminating pregnancy despite knowing the fact that neither is required by adult women. As a result of which she filed a petition in the apex court, but by the time of judgment she was 26 weeks pregnant and was forced to deliver her infant. It was held that it is because the duty cast on the authorities under the Medical Termination of Pregnancy Act, 1971 is not dutifully performed, and the failure has ultimately given rise to a catastrophe; a prolonged torment.

 Due to the wastage of time in Judicial Proceedings, the established time for termination of pregnancy is prolonged and the women are forced to unwanted pregnancies. The need of the hour is to consider the plight of women in these circumstances and to invoke necessary remedies.

The Division Bench in the case of Nand Kishore Sharma & Ors. v. Union of India & Anr[5]., observed that: “The issues relating to medical termination of pregnancy in common parlance known as ‘abortion’ are indeed of public importance. Counsels for the parties attempted to go into the length and breadth of the issue. In the opinion of the Court, however, the point for consideration lies in a narrow compass. This Court is not supposed to enter upon a debate as to when foetus comes to life or the larger question touching upon the ethics of abortion. We are merely concerned with the validity of the relevant provisions of the Act. At the outset, it may be mentioned that the petition was sought to be argued as if the Act has been enacted to legalize abortions but from a bare reading of the relevant provision it would appear that Act aim at termination of pregnancy in the interest of the woman or the to-be-born child. 

The Grounds of Abortion Prejudice the Rights of Women and Reproductive Autonomy

In this case also the Indian Judiciary restrained itself from going out of the ambit of the Act and to secure the rights of women and freedom of reproductive autonomy.

Most often the life of the unborn child is considered more important than the life of the woman concerned. This is a clear violation of basic principles recognized in International Law that a human being is vested with basic rights from birth. The rights of women shall not be prejudiced for the rights of unborn child.

In Oriental Insurance Co. Ltd. v. Santhilal Patal[6], the High Court of Andhra held that an unborn child aged five month onwards in the mother‟s womb till its birth can be treated as a child in existence. The foetus is another life in woman and loss of foetus is actually a loss of child in the offing.

In Abhilasha Garg & Anr. v. The Appropriate Authority[7], the court held that her matrimonial discord cannot be considered as a reason for permitting her to have termination of pregnancy by invoking provisions of the Medical Termination of Pregnancy Act, 1971. There must be threat to life of the women or infant for termination of pregnancy beyond 20 weeks.

All these cases are similar in some way or other. The combined effect can be considered that often the rights of women for safe abortion are ignored for protecting the rights of unborn child. The delay in filing cases and petitions to seek abortion often brings women in a condition of plight where they cannot have safe abortion which results in forced pregnancies.

The aim of the Legislation to regulate the safe and free abortions will only be solved by including non medical grounds and considering the rights and freedom of women to have reproductive choices and free will to terminate pregnancy.

The Indian Judiciary in various cases has restrained itself from considering the plight of women and had a view that the duty of the Court is only to apply the laws in the cases and not to consider any other factors which are not lawfully recognized.

It has been clearly evident that in the judicial interpretation and application of abortion laws, often the rights of pregnant women are prejudiced in some way or other. The plight of such women is continually ignored as the grounds of termination are very limited in scope and are not enough to solve the aim of the Legislation in the contemporary world.

The need of the hour is to build a strong mechanism and pass more stringent laws for protection of the rights of women and enabling them the freedom of reproductive choices which is a fundamental and human right enshrined in the Indian Constitution and various International Covenants.

[1] Betty Friedan, American Activist and Feminist.

[2] Medical Termination of Pregnancy Act, 1971 ; Section 3

[3] CIVIL APPEAL NO.5845 OF 2009
[4] Writ Petetion Civil No No.76 OF 2018

[5] Nand Kishore Sharma & Ors. v. Union of India & Anr., AIR 2006 Raj.166

[6] Oriental Insurance Co. Ltd. Vs. Santhilal Patal, 2007 (4) ALD 855

[7] Abhilasha Garg & Anr. vs The Appropriate Authority, AIR 1965 Guj 60, 1965