On Monday the apex court accepted the Public Interest Litigation (PIL) on right to abortion. The PIL was filed by three women Swati Agarwal, Garima Sakseria and Prachi Vats. The petitioners challenged the 'severe restrictions' imposed by the Medical Termination of Pregnancy Act (MTP) 1971. Advocating for the right to govern own body and have the right to continue or discontinue the pregnancy. The PIL stated how the right to privacy and the fundamental right to life (Article 21) have been compromised due to the MTP Act 1971.
The bench constitutes Chief Justice Ranjan Gogoi and Justice Deepak Gupta. They will examine whether abortion law is constitutional or not. Now the Supreme Court awaits the government's stand on this whether the provisions like sections 3(2) (a) and 3(2) (b) are unconstitutional and violates fundamental rights of women.
The bench constitutes Chief Justice Ranjan Gogoi and Justice Deepak Gupta. They will examine whether abortion law is constitutional or not.
What are abortion law and MTP Act 1971
Currently, the abortion law allows termination of any pregnancy without providing any reasons, only within the 12 weeks of pregnancy. Exceeding 12 weeks, the pregnant woman has to give an appropriate medical condition in order to terminate the pregnancy. Two registered 'medical practitioners' have to certify the cause of termination, if the social or mental health of the mother is in danger. Similarly, they will also give their expert view if there's a threat to mother’s life or there is an abnormal foetus. But if the pregnancy exceeds 20 weeks then abortion is possible only if there's a threat to the life of the mother.
Before 1971 any kind of abortion was termed as illegal, where the mother and practitioner could be punished. The MTP Act was introduced as a 'health measure' for the women of the country. It also allows abortion on ‘humanitarian bases’ such as pregnancy due to sexual crimes like rape or intercourse with a minor.
What does the PIL demand
The provision of the previous act imposed a severe restriction on the exercise of the reproductive choice of the woman. This restriction on abortion puts an undue burden on the exercise of free reproductive choice of the woman. The plea seeks to declare Sections 3 (2) (a), 3(2) (b), 3 (4) (a), 3(4) and section 5, to be unconstitutional.
Quoting Article 21 which ensures the right to life, the previous example of the 'right to privacy in Aadhaar' case where it was ruled that “Right to choose whether to conceive and carry pregnancy to its full term or to terminate it is at the core of one’s privacy, dignity, personal autonomy, bodily integrity, self-determination & right to health.” Also, it mentioned the landmark 1973 judgement of the US Supreme Court in Roe Vs Wade, where the court held that “the government could not prohibit abortions in the first trimester because termination of pregnancy in this period involved minimal risk.”
“The MTP Act has not kept time with changing the discourse on sexual and reproductive rights and advancement in medical technology"
Why it is necessary to re-evaluate the law
There's a proposed enhancement to increase the outer limit of 20 weeks to 24 weeks for an abortion, which is still pending. Women in past had to knock the doors of the apex court for termination of pregnancy which was beyond 20 weeks.
“The MTP Act has not kept time with changing the discourse on sexual and reproductive rights and advancement in medical technology. There is an urgent need to amend the Act. The GOI had notified the draft amendments in 2014, which among other things sought to make abortion in first trimester a right. Unfortunately, the 2014 amendments have not seen the light of the day,” said VS Chandrashekar, CEO of FRHS India and CAG member, Pratigya Campaign for Gender Equality and Safe Abortion (Hindustan Times).
With the robust increase in population and lack of medical facilities, women need to have the right to choose whether they are ready for this big decision or not.
Divya Tripathi is an intern with SheThePeople.TV