The Beijing platform for Action which was an outcome of the fourth International Conference for women stated that “The human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality including sexual and reproductive health free of coercion, discrimination, and violence.”
Abortion services have been legal in India under certain conditions since the Medical Termination of Pregnancy Act was enacted in 1971.
The decision regarding whether to continue a pregnancy or terminate it should fundamentally be the decision of a woman, as it may shape a woman’s future life and impact her other human rights. Forcing women to continue unwanted pregnancies would represent a violation of their right to health and bodily integrity. Access to safe abortion is hence one of the many aspects to ensure women’s right to bodily autonomy.
Abortion services have been legal in India under certain conditions since the Medical Termination of Pregnancy Act was enacted in 1971. As per the Act, abortion is legal if the continuation of pregnancy would involve risk to life of a pregnant woman or cause grave physical and mental injury, including pregnancy due to rape; risk of physical and mental abnormality in the foetus and contraceptive failure. Abortion is legal up to 20 weeks of gestation. Pregnancy can be terminated by a registered medical practitioner registered with the State medical register. As per the provisions of the Act, only the consent of woman whose pregnancy is being terminated is required. However, in case of a minor, below the age of 18 years, or a mentally ill woman, consent of the guardian is required for termination.
The Courts have on many occasions upheld the right of women to make autonomous decisions about their body and reproductive functions, including her right to terminate or continue a pregnancy, by stating that these are at the very core of a woman’s fundamental right to equality and right to life with dignity and personal liberty.
In the Suchita Srivastava and another vs. Chandigarh Administration (2009 11 SCC 409), a woman staying in a home run by the Chandigarh administration was found to be pregnant, the pregnancy was caused because of rape. The woman was found to have “mild mental retardation” and was suffering from spinal deformity and Hepatitis B. The administrative authorities sought permission to have her pregnancy terminated on the grounds that she did not have the physical and mental capacity to bear and raise a child and on the ground that although she was 19 years of age, she suffered from mental retardation. An expert group was constituted to take a decision in the matter considering the health of the woman. The findings of the expert group indicated that the continuation of pregnancy would not pose any grave risk to the physical or mental health of the victim and that there is no indication that the prospective child is likely to suffer from a congenital disorder. They also found that the victim expressed her willingness to continue the pregnancy. The Apex Court in its order ruled that a woman’s pregnancy cannot be terminated without her consent and proceeding with the same will not be in her best interest. The Court further directed that the woman be provided with the best medical facilities so as to ensure proper care and supervision during pregnancy as well as for post-natal care…. The Court held that “There is no doubt that a woman’s right to make reproductive choices is also a dimension of personal liberty as understood under Article 21 of the Constitution of India. It is important to recognize that reproductive choices can be exercised to procreate as well as to abstain from procreating”.
If a woman does not want to continue with the pregnancy, then 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. – The Bombay High Court.
In another case, Dr. Mangla Dogra and Others vs. Anil Kumar Malhotra and Others (C.R.6337/2011) a husband filed a civil suit for the recovery of Rs.30 lakhs towards damages on account of mental pain, agony and harassment against the wife, her parents, brother and doctors who had conducted medical termination of pregnancy, for getting his wife’s pregnancy terminated. The question before the Court was whether the express consent of the husband is required for an unwanted pregnancy to be terminated by a wife, the High Court dismissed the husband’s plea holding that termination of pregnancy was the sole prerogative of woman. The Court held that “It is a personal right of a woman to give birth to a child…Nobody can interfere in the personal decision of the wife to carry on or abort her pregnancy…unwanted pregnancy would naturally affect the mental health of the pregnant women” In 2017, a three member bench of the Supreme Court, upheld the decision of the High Court and dismissed the husband’s petition seeking damages from his estranged wife for undergoing abortion without his consent, and ruled that an adult woman had an unimpeachable right to give birth or terminate her pregnancy.
In another recent case, High Court on its own motion v.s State of Maharashtra, (W.P. (CRL) No. 1/2016 Maharashtra H.C.) permission was sought for termination of pregnancy of an under-trial prisoner based on a requisition given by her. In the requisition, she has stated that she already has a child who is five months old. The child was suffering from convulsions, epilepsy, hernia, loose motion as well as fever. Her health was also not good and she was suffering from repeated bleeding. She was currently four months pregnant. In all these circumstances, she said that it would be difficult for her to take care of her five months old child, herself and the child which she was expecting, she, hence requested that she be allowed to medically terminate her pregnancy. The jail medical officer also supported the contention of the woman, in respect of termination of pregnancy. The Bombay High Court endorsed the woman’s sole right over her body by stating that “If a woman does not want to continue with the pregnancy, then 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.” The judgment went on to say that “The right to control their own body, fertility and motherhood choices should be left to the women alone.”
The above Judicial pronouncements go to show that Courts have upheld women’s right to make reproductive choices and upheld their right to bodily autonomy and integrity.
Anuja Gulati is a Gender Consultant at Population First. This series is being published in collaboration with Laadli. The views expressed are the author’s own.