INTRODUCTION
In India, the law on abortion is primarily governed by Sections 312-316 of the Indian Penal Code (IPC) and the provisions of the Medical Termination of Pregnancy (MTP) Act, 1971. The IPC provisions criminalize abortion; however, there are certain exceptions in the MTP act that allow pregnancy to be terminated when there is a threat to the physical and mental health of the mother or the foetus. When the same question is raised before the court, the court resolves the issue through the delivery of judgment.
FACTS OF THE CASE
The facts of the case are as follows: the writ petition was filed before the two-judge bench of Kerala high court. The petition was filed by the father of the minor girl (referred to as Y) who has been raped at a very tender age of 14 years which is very disheartening for a girl and her family and also for us as part of society. The petition was filed to terminate her pregnancy, for the same which has now progressed to the 24th week.
The petitioner also prayed before the court for termination of pregnancy as a continuation of the pregnancy would result in the mental injury of the girl and, the girl is even not physically capable to carry a child at such a tender age.
ISSUES
- Whether the continuance of the pregnancy would involve risk to the life of the pregnant woman and child born out of it give grave injury to women’s physical and mental health?
- Whether there is any right available to women under the constitution of India to conceive or abort the child according to their will?
CONTENTIONS OF THE PETITIONERS AND INTERVENORS
The counsel of the petitioner argued that though the period of termination of pregnancy is expired according to medical termination of pregnancy (MTP) which is of 20 weeks under Section 3[1] but still due to the need and urgency of the situation it is pleaded before the court that as the mental and maturity level of her is very low and her body is not in a position to conceive the child if the pregnancy is continued there would be chances that physical and mental health of the pregnant women will be in the risk or child born out of this may have the genital disorder or physical incapacity due to improper development.
It was also argued before the court that there is an exception to this when there is an urgency of the situation. Section 5 of the MTP Act also provides for an exception to Section 3, whereby the 20-week window for abortion can be disregarded in exceptional circumstances where the mother’s life is in danger due to the pregnancy.
No pregnancy of a woman, who has not attained the age of eighteen years, or who has attained the eighteen years but is lunatic needs the consent of the guardian in writing.[2]
The learned counsel of the petitioner while presenting his case cited the case Murugan Nayakkar v. Union of India and others, A v. Union of India, and others [3] where it was said by the court that termination of pregnancy should be allowed considering of the age of the victim and mental agony and trauma she has suffered and as the minor, she is not capable to carry off the child or foetus is suffering from a such a medical condition where it becomes impossible to him to survive outside of the womb.[4] whereas the Supreme Court also recognized privacy as a fundamental right under the Indian Constitution, including within its scope the rights to bodily integrity, reproductive choice, and decisional autonomy under Article 21 of the Indian constitution.[5]
CONTENTIONS OF THE RESPONDENT
It was argued on the side of the respondent that as the pregnancy has been advanced to that extent that if it would be terminated at this stage there are chances of the danger of the mother’s health if the mother been allowed to terminate the pregnancy.
It was also argued that for termination of pregnancy the consent of the minor child is very important as it is her constitutional right under Article 21 for a future course. The said choice would extend to deciding whether or not to carry her pregnancy to its full term. As the pregnancy has been in the advanced stage so pregnancy must be terminated without wasting the time otherwise it would result in substantial risk and danger of women’s life.
JUDGEMENT
The Kerala High Court while allowing the abortion stated that, ‘Y’ have right to make a reproductive choice under the purview of Article 21 right to life and personal liberty under the constitution of India the said choice would extend to deciding whether or not to carry her pregnancy to its full term. “Although restrictions imposed under the MTP Act is expired in the instant case, the court relies on the report of the Medical Board and justifies it and said that the termination of the pregnancy is sole ‘Y’’s decision and besides, she also has the consent of her parents to terminate her pregnancy”.
The Court also stated that “If the child is born alive and healthy despite the attempts of medical termination of pregnancy, the doctors shall ensure that possible arrangement is made which is feasible and law-abiding for the health and nourishment of the child so the child develops healthily.” Because the court view is always in the favor of both mother and child and saves him from bastardization in the society. The legitimacy of a child is a highly sensitive issue in a country like ours wherein the bastardization of a child can have such repercussions that do not bode well for the societal well-being of the child and the mother.[6]
CRITICAL ANALYSIS OF JUDGEMENT
Every right has two elements: a material element and a formal element. When we care about our reputation, we mean that we care about enjoying a good reputation, and the state has a responsibility to protect these interests. Likewise, if a doctor who is obliged to provide safe medical care when we care about our bodies refuses to have an abortion, we will deprive her of her rights under Article 21. In this case, the conception occurred as a result of sexual assault on the minor girl, intruding on her fundamental right to live like a normal person without witnessing the trauma of carrying her rapist’s child, in addition to the invariable trauma of conceiving at such a young age. This should take precedence over the fictitious fundamental right of the child who is about to enter the world.
The court in this matter related to the reproductive right to the mother and there are substantial risks to the life of ‘mother as well as to her mental health if she is allowed to continue with her pregnancy at the young age of 14 years and then now, she possesses maturity required of a prospective mother. The court also said that it is the fundamental right under Article 21 under which she has liberty either to conceive or abort. The Supreme Court in 2018 recognized the importance of sexual autonomy and linked it to reproductive autonomy.[7] the court also said that she does not want to continue with her pregnancy, as far as her baby is concerned the medical opinion is that there is a substantial risk of physical and mental abnormalities and if the baby survives the termination of pregnancy at this stage, then too there is a substantial risk of physical and mental abnormalities as to seriously handicap the baby.
Reproductive rights are always considered as a subset of human rights, the idea of a liberalized law of abortion was first initiated by the Central Planning Board of the Government of India in 1964 as a family planning measure. The Government of India in 1964 constituted the Shanti Lal Shah committee to suggest measures for reform in the existing law of abortion. The suggestion was accepted and the MTPA was passed in 1971. The MTP act 1971 was largely influenced by medical and population-related concerns, it recognizes the legal and safe abortion which are affordable, accessible, and acceptable for women who want to terminate the pregnancy. The shah committee review that the socio-cultural, legal, and medical aspects of abortion to prevent the wastage of life of women on both medical and compassionate grounds
WAY FORWARD
The recent bill passed by the parliament further increase the period of termination of pregnancy from 20 weeks to 24 weeks.[8] Also, HRD Minister Prakash Javadekar said that it was aimed to protect the reproductive rights of women, ensure safe termination of a pregnancy, and most importantly help the victims of rape, girls with disabilities as well as minors, who may not realize they are pregnant until later. The said bill was passed because the gestational age limit of 20 weeks is very less in the present era and the same is believed by gynaecologists and obstetricians as certain foetal abnormalities can be detected only after 20 weeks of conception.
As All pregnant persons are rights holders, by virtue of their personhood and human dignity and court in this case also given the judgment keeping in mind for the welfare measure of the child and mother, so the emphasis must be given to privacy and reproductive right of women not in abortion. providing quality health service enables women to balance safe pregnancy and social employment.
[1] Section 2 of Medical Termination of Pregnancy Act 1971
[2] Section 4(a) Medical Termination of Pregnancy Act 1971
[3] A v. Union of India and others – (2018) 14 SCC 75
[4] Murugan Nayakkar v. Union of India and others (2017) SCC Online SC 1902,
[5] K.S. Puttaswamy v. UOI (2017) 10 SCC 1.
[6] Vasu v. Santha.,1975 KLT 533.
[7] Navtej Johar v. Union of India AIR 2018 SC 4321
Joseph Shine v. Union of India, 2018 SCC SC 1676.
[8] https://www.indiatoday.in/india/story/cabinet-approves-raising-upper-limit-abortions-24-weeks-1641238-2020-01-29.
