Abortion jurisprudence in the Supreme Court of India: Is it the woman’s choice at all? (Pt. 1)

February 8, 2019

This post belongs to a two part series.

 

In the last few years, the Supreme Court has passed several decisions on reproductive rights. This two-part post specifically analyses the abortion jurisprudence of the Supreme Court over the last few years.

 

The law governing abortions is the Medical Termination of Pregnancy Act, 1971 (“MTP Act”). The MTP Act provides that a pregnancy may be terminated by a registered medical practitioner up to the 20th week of pregnancy, upon confirmation that the continuation of the pregnancy will either be a risk to the woman’s life or gravely injurious to her physical or mental health or if there is substantial risk that the child may have serious physical or mental abnormalities when born. Pregnancy caused by rape or due to the failure of contraceptives, would constitute grave mental health injury. Section 5 allows the termination of pregnancy beyond 20 weeks if it is immediately necessary to save the woman’s life. In all cases of abortion after 20 weeks that have come before the Court, the Court constitutes a Medical Board, an expert committee of medical professionals that produces a Report. The Report addresses whether, first, the continuation of pregnancy would cause grave physical or mental injury to the woman and, second, whether the child born would suffer from any mental or physical disabilities.

 

In Mrs. X vs. Union of India, the Supreme Court allowed for the termination of a 22-week old pregnancy. This was done after a 7 member Medical Board opined that allowing the pregnancy to continue could gravely endanger the woman’s physical and mental health.  The Court held that “a woman’s right to make reproductive choices is also a dimension of her ‘personal liberty’ under Article 21 of the Constitution” and that the right to bodily integrity allows her to terminate her pregnancy. Similar judgments were passed by the Supreme Court in other cases where pregnancies were beyond 20 weeks and the fetuses had various medical conditions and anomalies, resulting in a high risk to the fetus and the mother (Tapasya Umesha Pisal vs. Union of India [24 weeks]; Meera Santosh Pal vs. Union of India [23 weeks]; Mamta Verma vs. Union of India [25 weeks]). In all these cases the Supreme Court referred the matters to a Medical Board and gave its decision based on the opinion of the Medical Board.

 

In Murugan Nayakkar vs. Union of India & Ors. W.P. (C) No. 749/2017, the Apex Court allowed the termination of 32-week old pregnancy of a 13 year old rape victim holding, “Considering the age of the petitioner, the trauma she has suffered because of the sexual abuse and the agony she is going through at present and above all the report of the Medical Board constituted by this Court, we think it appropriate that termination of pregnancy should be allowed.”

 


 

See Part II, for cases where the Court did not permit abortions and a normative analysis of the MTP Act in the context of a woman’s reproductive choice.

(This post was authored by formed CLPR Research Associate Shradha Thapliyal)