Abortion jurisprudence in the Supreme Court of India: Is it the woman’s choice at all?

February 8, 2019

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.”

 

However, 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.

 

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 as well the Court did not allow termination. The Medical Board opined that the continuation of the pregnancy was less hazardous for the petitioner than termination at that stage. During the course of the proceedings, the Court asked the Centre to direct setting up of permanent medical boards in states to expeditiously examine requests for termination post 20 weeks of pregnancy and the Centre issued instructions for the same.

 

Thus we see that the Court’s decisions depend on the recommendations of the Medical Board. It is the Medical Board’s findings on the continuation and termination of pregnancy, which becomes the determining factor for the Court, rather than the woman’s reproductive rights. Hence we need to ask the question of whether the Courts should be depending 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 disability of the fetus and juxtapose the rights of the woman to reproductive autonomy and disability rights. These are difficult issues and certainly cannot be addressed just by relying on Medical Board Reports. We need to think of post-20-week abortions in a manner that places women’s choices at the centre and the substantive law and procedure needs to be framed that respects women’s reproductive choices.

 


 

This post was authored by former CLPR Research Associate Shradha Thapliyal