The Supreme Court allowed the medical termination of pregnancy of a married women who is 26 weeks pregnant. The petitioner, who is mother of two children, told the apex court she is suffering post-partum depression and that she is not in position to raise the third child, emotionally, financially and mentally. The court was also informed that she has been undergoing psychiatric treatment for a year.
At the end of the day, this court does recognise the decisional autonomy of the women, who has taken a plea of her physical, psychological, mental, financial and social economic backgrounds, to seek termination of her pregnancy. This court does recognise the right of a woman over her body and the fact that if an unwanted pregnancy results in a child being brought into the world, the large part of the responsibility of rearing such a child will fall on the shoulder of the women, which at this point she doesn’t consider herself fit for”, a bench of Justice Hima Kohli and Justice BV Nagarathna said.
The woman informed the court that she had used the contraceptive method of Lactational Amenorrhea, since she was breastfeeding her second child. However, this Contraception method failed and resulted in her pregnancy, which she discovered belatedly. Pregnancy is rare when mother is breastfeeding and the petitioner is a rare case, the court observed. The Apex Court observed that medical reports estimate that this method usually provides over 95% protection.
During the previous hearing, the court had directed a medical board to be constituted by AIIMS to assess the medical condition of the petitioner. Today, the court allowed the petitioner to appear virtually and asked her about her willingness to continue with the pregnancy. She expressed her unwillingness for the same and sought permission from the court for termination of her pregnancy.
This court has recognised the fact that one of the grounds on the basis of which pregnancy may be terminated is when continuing with the pregnancy could impair the mental health of the woman as observed in the case X v. Principal Secretary. Courts have been expansively interpreting Section 5 of the MTP Act that permits termination of pregnancy beyond 20 weeks in circumstances where it is considered imperative to save the life of the woman. This Court has also recognised the fact that “mantal health” has a broad connotation, beyond what is ordinarily considered as mental illness in common medical parlance.
The different categories carved out in Rule 3 (B) on the Medical Termination of Pregnancy Rules, 2023 show that women can seek abortion even after 20 weeks, which could be on account of a delay in recognizing their pregnancy or a change of their life circumstances to the point that the point that pregnancy becomes unwarranted and unviable.
X vs. Principal Secretary health & Family welfare dept
In the Landmark Judgement X vs. Principal Secretary health & Family welfare dept, 2022, the Supreme Court clarified the interpretation of medical termination of Pregnancy Act. It’s a Progressive judgement, which led to breaking new grounds & evolving a modern jurisprudence on the abortion law in accordance with the changing social mores & non traditional familial relationship.
Facts of the Case
A 25 years old single woman, approached the Delhi High court for seeking permission for terminate her 22 week pregnancy out of a consensual relationship. But, on 15 July, High court denied her permission by reference the provisions of Medical termination of pregnancy act, which allowed only married women to undergo abortion after 20 weeks & she was not covered in any clauses under MTP rules, 2003 on account of mental anguish, rape, health complications.
Then she approached the Supreme court on ground of social stigma & harassment pertaining to unmarried single parent & continuation of unwanted pregnancy would involve a risk of grave & immense injury to her mental health.
Provisions related to Abortion/Termination of Pregnancy
Before the enactment of MTP Act,1971, Medical termination of pregnancy was governed by the IPC with Sections 312 to 318. These provisions aimed at Criminalise abortions, except where the procedure was in good faith in order to save the woman’s life.
In 1971,MTP Act enacted by Parliament to decriminalise abortion in certain defined circumstances & under due supervision of registered medical practitioners. According to MTP ACT,1971, a pregnancy could only be terminated U/S.3(2), if it didn’t exceed 20 weeks. Also, a pregnancy can be terminated on the opinion of one doctor if it’s done within 12 weeks of conception. And requirement of opinion of two doctors, if it’s done between 12 to 20 weeks.
The Issues before the Court & Adjudication
The main issue before the supreme court was to examine whether the rule 3B of MTP Rules, 2003 is violative of Article 14 of the Indian Constitution, since it excludes an unmarried woman & deprives her the access to safe & legal abortion.
In the evolution of the law towards a gender equal society, the interpretation of the MTP Act & rules must consider the social realities of today & not to be restricted by societal norms of age.
The unamended MTP Act, 1971 was largely concerned with married women & the 2021 Amendment doesn’t make a distinction b/w married & unmarried woman. Rather, all women are entitled to the benefit of safe & legal abortion. Rule 3B of MTP Rules,2003 struck down on the ground of being discriminatory against unmarried women, who may go through the same trauma & life situations as a married woman does.
The object of Section 3(2)(b) of MTP Act r/w Rule 3B is to provide for abortion b/w 20 to 24 weeks, rendered unwanted due to change in the material circumstances of women.
In contrast to a legal abortion that is carried out by a trained medical provider, unsafe abortions can have fatal consequences. The rights of reproductive autonomy, dignity & privacy under article 21 give an unmarried woman the right to choice on whether or not to bear a child, on a similar footing of a married woman.
What is India’s Abortion Law?
Until the 1960s, abortion was illegal in India and a woman could face three years of imprisonment and/or a fine under Section 312 of the Indian Penal Code (IPC). It was in the mid-1960s that the government set up the Shantilal Shah Committee and asked the group, healed by Dr Shantilal Shah, to look into the matter of abortions and decide if India needed a law for the same.
Based on the report of Shantilal Shah Committee, a medical termination bill was introduced and was passed by Parliament in August 1971. The Medical Termination of pregnancy (MTP) Act, 1971 came into force on 1st of April 1972.
In 2021, Parliament amended the law to allow for abortions based on the advice of one doctor for pregnancies up to 20 weeks. The modified law needs the opinion of two doctors for pregnancies between 20 and 24 weeks.
Further, for pregnancies between 20 and 24 weeks, rules specified seven categories of women who would be eligible for seeking termination under section 3B of rules prescribed under the MTP Act.
- Survivors of sexual assault or rape or incest,
- Minors,
- Change of marital status during the ongoing pregnancy (widowhood and divorce),
- Women with physical disabilities (major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016)
- Mentally ill women including mental retardation,
- The foetal malformation that has a substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped, and
- Women with pregnancy in humanitarian settings or disasters or emergencies may be declared by the Government.
In the recent case-
CJI DY Chandrachud said, “Do you want as to tell the doctors to tell the doctors to stop the heart of the fetus, which is healthy and viable? This would mean putting the child in the womb to death under judicial orders. If the baby is delivered prematurely, doctors say it may have serious deformities. If she carries on with the pregnancy for a few more weeks, the child will be healthier and would have better chances to finding adoptive parents as in India an overwhelming majority prefer to adopt a healthy child.
Additional solicitor general Aishwarya Bhati came to the rescue to the court by volunteering to try to persuade the woman to continue with the pregnancy for a few more weeks.
Need to balance the rights of woman & unborn child
The pregnancy was to be terminated on Monday on the orders of a bench of Justices HimaKohli and BV Nagarathna, which allowed a woman’s autonomy and choice concerning reproductive rights to trump the right of an unborn child. However, while still in womb, the fetus has gained viability, thus putting a new factor — its right to life — in judicial play.
A clarification sought by a professor in the obstetrics and gynaecology department of AIIMS — whether the viable fetus’ heart is to be stopped, or it is to be delivered prematurely with the attendant risks of developing serious mental and physical problems — and the pro-life persistence of additional solicitor general Aishwarya Bhati made Justice Kohli change her mind on Wednesday. Justice Nagarathna has stuck to her “women’s autonomy trumps fetal right” stand despite the Medical Termination of Pregnancy Act allowing abortion of a 20-24 week pregnancy only under exceptional circumstances
The split decision extended the lifespan of the fetus, while placing a sensitive socio-legal issue before a bench of Chief Justice D Y Chandrachud and Justices JB Pardiwala and Manoj Misra, which on Thursday attempted to impress upon the woman’s counsel, Amit Mishra, that a pragmatic approach was the demand of the hour.
Justice Pardiwala explained the choices and their consequences to the counsel for the woman who along with her husband had joined the proceedings virtually. When Mishra said the woman had delivered her second child a year ago and faced post-partum depression, the bench pointed to doctors who said she would face a similar problem even if she delivered prematurely.
With Mishra citing the woman’s medical problems to insist on terminating the pregnancy, the CJI said, “Let me put it bluntly – either we kill the child, or we ensure that the child is born and deformed for whole life. As a court, I find it difficult even in our constitutional jurisprudence to mandate by judicial order termination of the pregnancy.”
“Yes, we have ordered termination of older pregnancies of minors, or that arising from sexual assault or when the fetus has serious abnormalities. The judges’ task is all about balancing rights, duties and what is in social good. I find it very difficult to come to terms with this order actually,” the CJI said.
“This is not a case of a minor victim of sexual assault getting pregnant. She is a married woman who has two children. The elementary question we want to ask — what was she doing for 26 weeks? She had two earlier pregnancies and knows the consequences of pregnancy … What do we tell the doctors to stop the fetal heart? You want the child to be born alive but doctors say if it is delivered now there is a high risk of it having physical and mental abnormality, not because of any genetic defect but because of forced premature delivery. Doctors say if you wait for eight weeks, it will most probably be a normal child. We have to balance both things,” said the CJI.
“We also need to balance the rights of the unborn child even though autonomy of women must trump. She has a right under Article 21 and various other provisions. But, equally we have to be aware that whatever we are going to order would affect the rights of the unborn child. Nobody is appearing for the child. How do we balance out the rights of the child? The law puts the cut off at 20 weeks with special circumstances extending the deadline to 24 weeks. In your case it is just not a fetus but a living child which if delivered prematurely would have serious deformities… ,” Justice Chandrachud said.
As Bhati offered to speak to the woman again, the court asked the woman’s counsel, Amit Mishra, to join the ASG in explaining the pros and cons of her decision.