In 2009 the Supreme Court of India gave a landmark judgement in Suchita Srivastava vs Chandigarh Admnistration case where it was held that right to reproductive autonomy is an integral part of Right to Life under Article 21 of Constitution of India. The Apex Court stressed that a medical procedure of abortion cannot be carried out on a woman if she has not consented to it. Hence, the right to reproductive autonomy was held as a Fundamental Right.
Right to Abortion: The Issue of Accessibility
Medical Termination of Pregnancy (MTP) Act, 1971 has governed women’s right to access abortion and their reproductive autonomy. SheThePeople reached out to two lawyers who have been litigating on MTP cases to understand the realities of the women who reach out to courts to access their right to abortion. These cases raise important questions on aspects of choice and autonomy. Ultimately, the larger question looms, how free is the womb and the woman who carries it? Please note that the names of the survivors have been changed to respect privacy and anonymity.
Case 1: Raisa Bi vs State of Madhya Pradesh, 2019
Raisa Bi’s daughter, a 13 year old minor girl, was subjected to rape. By the time the FIR was filed and case reached the judiciary, the survivor has already been pregnant for 24 weeks. Advocate Nikita Sonanvane, representing the victim narrates the case and how it unfolded. The case was first heard by a single judge bench which dismissed the plea for termination of pregnancy as it was already beyond 20 weeks, the legal upper limit as per MTP Act 1971.
The case was taken up to the Madhya Pradesh High Court which ordered for the constitution of a medical board to deliberate upon the risk of terminating such pregnancy. The litigants pushed to have a mental health expert or child psychologist on board. In the city of Bhopal, this task proved to be difficult and finally, a psychiatrist was brought in on the committee.
Upon committee consultation, it was finally recommended that the Court should pass an order for termination. The order granted permission for termination upon the condition that the survivor and the guardian are willing to take “responsibility and risk for undertaking medical termination of pregnancy and that they expressly indemnify and exonerate the respondent authorities, doctors and all others involved, of any responsibility or liability” states the judgement that has been passed by High Court.
Sonavane finds this clause exonerating doctors and others involved in such terminations, as unwilling to assume responsibility. She says, “The guardian is asked to take risks that even medical practitioners cannot foresee." Hence, in case the survivor faces any complication in the medical procedure or there is medical incompetency, neither the State nor the medical establishments are going to assume responsibility. Raisa Bi’s daughter finally got her pregnancy terminated at 31 weeks.
Case 2: Zarinaben Manek vs State of Gujarat, 2020
Zarinaben’s daughter, a 14-year-old girl, was subjected to rape. Hirak Ganguly, advocate at Gujarat High Court narrates the case as it unfolded within the judiciary. At the time of filing the application for termination of pregnancy, the survivor was already pregnant for 20 weeks. The Trial Court did not allow for the termination of pregnancy as it was beyond the statutory limit of 20 weeks as per the MTP Act of 1971.
The case was once again filed before the Gujarat High Court. The High Court issued an order for the constitution of a Medical Board which affirmed for the pregnancy to be terminated. However, petitioners wanted to withdraw their petition and not go ahead with the termination. The victim and the mother reached the decision that they wish the pregnancy to be continued despite the recommendation of a Medical Board that carrying the pregnancy is hazardous to the health of the survivor. The petition was withdrawn after the survivor decided not to terminate but continue with the pregnancy.
Abortion and Accessibility
In both cases, the issues of accessibility were mediated through the judiciary. Both the survivors of rape did not have access to abortion unless they went through the judiciary and medical boards. The MTP Amendment Bill, 2020, which is pending, allows for termination of pregnancy even beyond 20 weeks up to 24 weeks especially in cases of rape, sexual assault, incest and, foetal abnormalities. In light of both the cases discussed, does merely increasing the upper limit for termination of pregnancy from 20 to 24 weeks solve the issues of accessibility?
The Bill assumes every women across the country has equal access to health care facilities which allow for abortion. “Women in rural areas access primary health care systems which do not have doctors that can perform medical termination procedures. This makes it impossible for them to access abortion” says Sonavane, further adding, “The public health care system has an aversion towards women going through an abortion. This becomes even more difficult when minor girl below the age of 18 are trying to access abortion bringing them under the purview of Protection of Children from Sexual Offences Act, 2009 where a complaint has to be lodged if a minor girl is trying to terminate a pregnancy."
Ganguly opines that the Act and the impending Bill addresses the question of can the abortion be done or not, but, "It does not address the question of willingness." He further adds, “The new Bill saves women from approaching the Court, as the Medical Board created under the Bill will be present in the State and in the District, a fixed board for considering the pregnancy."
The question of accessibility to abortion then is subject to geography, where you live and the state of health care centres in the area. It is also subject to a medical board which determines whether a pregnancy can be terminated or not. Ultimately, beyond 24 weeks, it depends on the judiciary to decide on the termination of a pregnancy.
Why It Matters?
In 2009 the right to reproductive autonomy was held to be a Fundamental Right. Despite this, there is presence of legislations which undermine women’s right to reproductive autonomy. The questions of autonomy and choice get complicated when the seeker of abortion is a minor girl, who may or may not be a victim of sexual crime. Who makes the choice for the minor girl? Who is allowed to make choices for her? The State allows children above the age of 12 to consent for all medical procedures but only in the case of abortion minor girls are not allowed to consent. The question that begs to be asked is why despite seemingly progressive amendments we are still struggling with bodily and reproductive autonomy. And finally, why is the womb so heavily legislated?
Picture Credit: womenpla.net
Priyanka Chakrabarty is an intern for SheThePeople.TV.