Abortion jurisprudence in the Supreme Court of India: Is it the woman’s choice at all? (Pt. 2)

February 11, 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”). Section 5 allows terminations of post-20-week pregnancy, if they are immediately necessary to save the pregnant woman’s life. In all cases of abortion for post-20-week pregnancies that have come before the Court, the Court constitutes a Medical Board, an expert committee of medical professionals that produces a Report.

 

While the Supreme Court has delivered a series of judgments where it allowed the termination of pregnancies, it has also delivered judgments denying terminations.  In Savita Sachin Patil vs. Union of India, the Court rejected termination of a 27-week pregnancy. The Medical Board gave a finding that there was no physical risk to the mother but the fetus had severe physical anomalies. The Court then did not permit termination on the ground based on the Medical Board Report (MBR).

 

In Alakh Alok Srivastava vs. Union of India W.P. (C) No. 565/2017, where the petitioner was a 10-year-old pregnant rape victim with a 32-week pregnancy the Court did not allow for a termination. The Medical Board opined that continuing the pregnancy would be less hazardous for the petitioner than a termination. During the course of the proceedings, the Court asked the Centre to direct the setting up of permanent medical boards in all States to expeditiously examine termination, specifically for pregnancies that exceeded 20 weeks. The Centre issued instructions for the same.

 

This case in conjunction with the cases examined in the previous post demonstrate that it is the Medical Board’s findings on the continuation and termination of pregnancy that are the determining factor for the Court, rather than the woman’s reproductive rights. We need to ask the question, should the Courts depend solely on MBRs? While the Medical Boards can determine the physical health of the woman, can it determine the mental health and conditions of the woman, which may require her to terminate her pregnancy? Ultimately should not the right to terminate the pregnancy be determined by the woman, if her reproductive autonomy is to be protected?

 

This calls for several measures. There is a need for a comprehensive reform of the MTP Act, to expand the scope of abortion for beyond 20 weeks and lay down guidelines for the same. Presently when Medical Boards are set up, it is important that there are guidelines for the Board, since there are differing views taken by the Board on when termination is recommended. Many cases raise difficult questions on the disability of the fetus and juxtaposes the rights of the woman to reproductive autonomy and disability rights. These are difficult issues and certainly cannot be addressed by solely relying on Medical Board Reports. We need to think of post 20-week abortions in a manner that places a woman’s choice at the centre and the substantive.

 


 

See Part I, for cases where the Court permitted terminations.

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