INDIA – Reassessing India’s abortion laws: a call for change

“Nearly two decades ago, the Supreme Court of India delivered a landmark judgment in Suchita Srivastava & Anr vs Chandigarh Administration. The judgment stayed the orders of the High Court of Punjab and Haryana, which had ruled that a ‘mentally retarded woman’ who was raped while residing in a government-run welfare institution in Chandigarh should undergo a medical termination of pregnancy (MTP). The woman in question was an orphan who had been abandoned by her parents at an early age and was under the guardianship of the Missionaries of Charity, New Delhi.

“Despite her willingness to bear a child, the High Court ruled in favour of the proposed abortion. However, the Supreme Court held that her pregnancy could not be terminated without her consent, as doing so would not serve her best interest. The Court emphasised that a woman’s right to make reproductive choices is an essential aspect of ‘personal liberty’ under Article 21 of the Constitution of India. This right allows women to choose whether to procreate or refrain from procreating, with the key consideration being respect for their privacy, dignity, and bodily integrity. Any restrictions on reproductive choices should only be in line with the provisions of the Medical Termination of Pregnancy (MTP) Act, 1971.

“In 2022, the Supreme Court reaffirmed a woman’s guarantee under Article 21 to seek MTPs, as previously in Suchita Srivastava. In this instance, an unmarried woman became pregnant in a consensual relationship, but her partner deserted her. She wished to terminate the pregnancy due to concerns about societal stigma and harassment faced by unmarried single parents, particularly women. However, the Delhi High Court denied her request for an MTP based on her unmarried status.

“The case reached the Supreme Court in X vs The Principal Secretary, Health. On 21 July 2022, the Court not only upheld Article 21 protection for women seeking MTPs but also expanded the scope of the MTP Act and accompanying rules. It allowed MTPs between 20 and 24 weeks for women facing changes in their material circumstances. It stated that excluding unmarried or single women who experience such changes from the ambit of the law would be discriminatory and a violation of Article 14 of the Constitution.

“Both judgments highlighted the importance of respecting women’s reproductive choices, ensuring their autonomy, and safeguarding their fundamental rights under the Constitution.

“Yet, the ethos of respecting women’s bodily autonomy recently fell afoul when Justice Samir J. Dave passed an oral order on 19 June 2023, denying a minor rape victim an MTP, because she was over 29 weeks pregnant and that a Medical Board Found no abnormalities in the physical and mental condition of the patient. Even after the psychiatrist of Civil Hospital examined the victim, no abnormality was detected. Given that the victim was a minor rape survivor who had just become pregnant, it is odd that the psychiatrist found her mental condition stable. However, keeping those aspersions aside, while the medical board advised against an MTP, the board also said that doing so would not harm the girl. The board stated that the newborn would suffer from prematurity and accompanying complications, but the minor girl would be fine. This order came three days after Judge Dave explored the option to ‘compromise the matter‘ between the victim and her accused rapist but dropped the plan after the accused child rapist informed the Judge that he was already married and his wife was expecting a child. Ultimately, the minor rape survivor’s plea for an MTP was denied, and she was ordered to deliver the child and stay at a state-run government facility.

“Constitutionally, Justice Dave’s order aligns with the MTP Act, 1971, which states that for pregnancies at any stage, including those beyond 24 weeks, an MTP can be conducted by the registered medical practitioner if he is of an opinion, formed in good faith, that doing so is immediately necessary to save the life of the pregnant woman or when a Medical Board diagnosis reveals substantial fetal abnormalities. However, the act fails to consider a woman’s mental health and anguish  a valid criterion, and its vague definition of “good faith” leaves room for uncertain interpretation, leading to confusion among medical practitioners themselves.

“The term “good faith” is inadequately defined in Section 52 of the Indian Penal Code (IPC) of 1860 as “Nothing is said to be done or believed in ‘good faith’ which is done or believed without due care and attention.” This definition merely suggests that actions or beliefs done without proper care or attention cannot be considered as being done in “good faith”. However, the lack of clarity regarding what constitutes “proper care or attention” in the context of Medical Termination of Pregnancies (MTPs) creates uncertainty among medical practitioners when dealing with cases beyond 20 weeks of pregnancies. The MTP Act is linked as an exception to the IPC, which does not directly address abortion but deals with miscarriages and prescribes punishments for offenders in Sections 312 to 315. Notably, Section 315 of the IPC states that anyone who intentionally prevents a child from being born alive or causes its death after birth may face imprisonment or a fine unless the act was done in ‘good faith’ to save the mother’s life. Once again, the lack of consensus on the medico-legal understanding of “good faith” and “proper care or attention” has led to a routine seeking of judicial authorization of MTPs, even though the MTP Act does not mandate doing so at any stage of pregnancy.

“India’s abortion laws and corresponding Supreme Court verdicts have often been hailed as progressive. However, they fall short when addressing the harsh realities faced by women and girls in need of reproductive care beyond 20 weeks. Constitutional courts currently handle such cases on a case-by-case basis, leading to inconsistent outcomes. For instance, in a recent case involving a disabled rape survivor who was 25 weeks pregnant, the Allahabad High Court asserted “that in the case of sexual assault, denying a woman the right to say no to medical termination of pregnancy and fasten her with the responsibility of motherhood would amount to denying her human right to live with dignity as she has a right in relation to her body which includes saying Yes or No to being a mother”. The Court further held that the same reasoning should hold even for cases extending beyond 24 weeks of pregnancy- a position drastically different from that held by the Gujarat High Court.

“The disparity between such judgments highlights the urgent need for clear and concise abortion law reform in India. While the MTP Act sets rules for women seeking MTPs at various stages of pregnancy, it fails to explain the rationale behind the specific gestational limits set at 20 weeks and 20-24 weeks and why post 24 weeks, a woman’s health, including her mental health, is not given due consideration (with only her “life” being considered along with the possibility of foetal abnormalities).

“In this complex landscape, the voices of girls and women are often lost as their access to MTPs becomes subject to fate – dependent on the Court’s speed in hearing their pleas, the efficiency of medical board examinations, and the prevailing Bench’s judicial philosophy. Women and girls seeking MTPs after 20 weeks are at the mercy of doctors and judges, lacking full control over their bodies and the true choice to determine when to terminate their pregnancies, even when an MTP is available after 24 weeks.

“While significant strides have been made with abortion laws in India, there is room for improvement. Back in 1993, when then-Judge Ruth Bader Ginsburg was asked about her position on abortion during her Senate confirmation hearings for the Supreme Court, she said: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”

“As we remember and honor her legacy as a champion for women’s legal rights, may her powerful words echo through the corridors of power, inspiring lawyers and judges to approach abortion decisions with empathy and compassion, particularly for women and girls facing difficult circumstances and uncertain futures – situations often exacerbated by the limitations imposed by the law over which they have no control.”

SOURCE: Jurist by Kanav Narayan Sahgal, 2 September 2023 + Image from Sabrang, 2 September 2022.