CHAPTER 5 CHAPTER CHAPTER FIVE 110 MEDICAL TERMINATION OF PREGNANCY Prior to 1971, abortions were governed solely by Sections 312-314 of the Indian Penal Code 1860 (IPC) and could not be performed except for saving a pregnant woman’s life. In 1971, the Medical Termination of Pregnancy Act (MTP Act) was enacted to eliminate abortions by untrained persons and in unhygienic conditions and to reduce maternal morbidity and mortality.1 In Jacob George v. State of Kerala,2 the Supreme Court clarified that the provisions of the IPC relating to miscarriage are subservient to the MTP Act. A challenge to the constitutional validity of the MTP Act on the premise that it violates the fundamental right to life of an unborn child was rejected by the Rajasthan High Court in Nand Kishore Sharma v. Union of India.3 It held that the MTP Act was in consonance with Article 21 of the Indian Constitution as its dominant object was to save the life of pregnant women, to prevent any injury to their physical or mental health, and to prevent possible impairments in the child to be born. With the Supreme Court’s decision in Suchita Srivastava v. Chandigarh Administration,4 a woman’s right to make reproductive choice, including the choice to procreate or abstain from procreating has been recognized as part of her personal liberty under Article 21 of the Indian Constitution.5 The Bombay High Court, in High Court on its Own Motion v. State of Maharashtra,6 reiterated the position stated in Suchita Srivastava and further opined that: A woman's decision to terminate a pregnancy is not a frivolous one. Abortion is often the only way out of a very difficult situation for a woman. … These are decisions taken by responsible women who have few other options. They are women who would ideally have preferred to prevent an unwanted pregnancy, but were unable to do so. If a woman does not want to continue with the pregnancy, then 5 CHAPTER forcing her to do so represents a violation of the woman's bodily integrity and aggravates her mental trauma which would be deleterious to her mental health. … According to international human rights law, a person is vested with human rights only at birth; an unborn foetus is not an entity with human rights. The pregnancy takes place within the body of a woman and has profound effects on her health, mental well-being and life. Thus, how she wants to deal with this pregnancy must be a decision she and she alone can make. The right to control their own body and fertility and motherhood choices should be left to the women alone. Let us not lose sight of the basic right of women: the right to autonomy and to decide what to do with their own bodies, including whether or not to get pregnant and stay pregnant. Although the MTP Act liberalized the law on abortion when compared to the provisions of the IPC, it does not provide women an unrestricted right of abortion. The permissibility of abortion under the Act has frequently come up for adjudication before the Courts. This chapter contains cases pertaining to: • Seeking Judicial Authorization for Medical Termination of Pregnancy • Termination Beyond the 20-Week Period • Consent of a Minor for Medical Termination of her Pregnancy • Consent of a Mentally Disabled Woman for Medical Termination of her Pregnancy • Spousal Consent for Medical Termination of Pregnancy • Prosecutions for Contravention of the MTP Act Seeking Judicial Authorization for Medical Termination of Pregnancy While the MTP Act does not require judicial authorization for the termination of a pregnancy, courts are repeatedly approached for this purpose. In cases where women (or their guardians, in the case of minors) have sought permission for termination of pregnancies resulting from rape within the 20 week gestational limit under the MTP Act, courts generally tend to affirm Section 3 of the MTP Act and either permit such termination or direct a medical board to explore with the woman or girl the possibility of termination in consonance with Section 3 of the MTP Act.7 For example, in X v. Govt of NCT of Delhi,8 an HIV positive woman was 18 weeks pregnant as a result of forced prostitution. The woman was lodged in a government protection home and her initial request for abortion was denied by the concerned authorities. 111 SECURING REPRODUCTIVE JUSTICE IN INDIA: A CASEBOOK She petitioned the Delhi High Court against this denial. The High Court allowed the termination of her pregnancy, relying on Section 3 of the MTP Act, and in particular her willingness to terminate a pregnancy that resulted from rape as well as the mental, physical, social and economic problems that the woman was likely to face from continuation of the pregnancy. At the same time, in Bashir Khan v. State of Punjab,9 and Kamla Devi v. State of Haryana,10 the Punjab and Haryana High Court clarified that for a pregnancy under the 20 week gestational limit, there is no requirement to obtain permission of any authority for termination of pregnancy under the MTP framework aside from the medical opinion of the requisite number of medical practitioners and consent of the woman or guardian in case of a minor. In Hallo Bi v. State of Madhya Pradesh,11 a woman under-trial prisoner approached the High Court of Madhya Pradesh seeking permission for termination of her pregnancy of about 12 weeks, which was a result of forced prostitution. Her initial request made to the jail authorities was forwarded to a chief judicial magistrate, who rejected it. The High Court allowed her to terminate her pregnancy relying on the ruling in Suchita Srivastava that a women’s right to make reproductive choices is a dimension of her personal liberty and in view of the medical opinion on feasibility of abortion. It held that “forced prostitution” amounts to rape and was covered within the conditions stipulated under Section 3(2) of the MTP Act for termination of pregnancy. Termination Beyond the 20-Week Period Under Section 5 of the MTP Act, termination of pregnancies beyond 20 weeks is permitted if one registered medical practitioner is of the opinion, formed in good faith, that such termination is “immediately necessary” for saving the life of the pregnant woman. The Section does not require any judicial authorization for post-20 weeks terminations. However, when doctors deny abortion post-20 weeks, pregnant women approach the Supreme Court and High Courts seeking permission to terminate the pregnancy.12 In such cases, Courts generally direct the setting up of a medical CHAPTER 5 CHAPTER board comprising of a multi-specialty team of doctors to examine the pregnant woman and provide a medical report to the Court.13 In adjudicating such cases, courts have looked at the following different factors while determining the permissibility of terminating a pregnancy beyond 20 weeks: RISK TO THE PREGNANT WOMAN FROM CONTINUING WITH THE PREGNANCY In most post-20 weeks cases courts require a medical opinion on the risks of continuing with the pregnancy in order to determine whether the pregnancy would endanger the life of the pregnant woman. In Meera Santosh Pal v. Union of India,14 the Supreme Court emphasized a woman’s right to reproductive autonomy and bodily integrity, and stated that this includes the right to take all steps necessary to preserve her own life. Therefore, the Court permitted termination of a pregnancy that posed a danger to the pregnant woman. In High Court on its Own Motion v. State of Maharashtra,15 the Bombay High Court opined that continuing any unwanted pregnancy to term “represents a violation of the woman's bodily integrity and aggravates her mental trauma which would be deleterious to her mental health.” RISK TO THE PREGNANT WOMAN FROM TERMINATION Courts also routinely seek medical opinion on the risks associated with terminating the pregnancy. Though termination of pregnancy in accordance with medical standards at any stage of the pregnancy is by itself not associated with high risk of morbidity or mortality,16 where a medical opinion by the court-appointed medical board raises concerns about the risks of termination associated with the particular health condition of the pregnant woman, courts have been reluctant to authorize termination of the pregnancy. For example, the Rajasthan High Court in Jamana Suthar v. State of Rajasthan,17 and Punjab and Haryana High Court in Kavita v. State of Haryana,18 disallowed termination of pregnancy because the medical opinion stated that it was likely to endanger the life of the minor rape survivors. Likewise, the Supreme Court in Alakh Alok Srivastava v. Union of India,19 Murugan Nayakkar v. Union of India,20 and Chanchala Kumari v. Union of India,21 heavily relied on the medical board’s opinion concerning the risks involved in termination of pregnancy without making an explicit reference to Section 3 or 5 of the MTP Act. All three cases dealt with pregnancies of very young children. In Alakh Alok Srivastava, the medical board opined that the risk of terminating the pregnancy was higher than the risk of carrying the pregnancy to term. Based on this opinion, the Court declined permission to terminate a pregnancy over the 20-week limit. In the other two cases, however, the respective medical boards were of the opinion that the risk from terminating the pregnancy was less than the risk of carrying the pregnancy to term. The Supreme Court accordingly permitted the termination of pregnancy in both cases. 112 MEDICAL TERMINATION OF PREGNANCY RISK TO THE PREGNANT WOMAN AS A RESULT OF FOETAL IMPAIRMENT Pregnant women have approached the Supreme Court and High Courts across the country seeking permission to terminate pregnancies after 20 weeks following foetal impairment diagnoses.