Bhubaneswar: In India abortions (medically termination of pregnancy) are legal, still then, even, the 2021 amended act of Medical Termination of Pregnancy (MTP Act 2021) did not give recognition to abortion on demand a pregnant woman’s right.
Hearing a petition for Medical Termination of Pregnancy of a minor tribal girl (a rape victim), the single Judge Bench of Justice Sanjeeb Kumar Panigrahi of Orissa HC has made big observations on abortions.
Justice Sanjeeb Panigrahi made some pertinent points.
- Society views abortion solely through the lens of regulation, it fails to grasp its deeper significance.
- Abortions are a matter of individual conscience of personal liberty
- The kind of liberty that a just and democratic state must not only recognize but actively protect.
- The right to make decisions about one's own body is not a privilege to be granted at the state's discretion.
- It is a fundamental aspect of human dignity, one that no authority should presume to deny.
- Quoted the SC Judgment of former CJI DY Chandrachud (year 2022)
- Justice Panigrahi said:
- In K.S. Puttaswamy v. Union of India,
- The Supreme Court declared with unwavering clarity that the right to make reproductive choices finds firm footing within the constitutionally enshrined guarantees of life and personal liberty under Article 21
ABORTION FUNDAMENTAL RIGHT OF WOMAN? WHAT SC SAYS?
Delivering a historic judgement in year 2022 on a petition filed at the Apex Court by an unmarried Manipur women residing in National Capital, who sought abortion of her fetus which had been over 22 weeks old.
The petitioner reasoned that she went for late abortion after her partner refused to marry her.
In her petition before SC, the petitioner stated that she did not want to carry the pregnancy to term as she was wary of the “social stigma and harassment” pertaining to unmarried single parents, especially women.
The petition stated this unwanted pregnancy would involve a risk of grave and immense injury to her mental health.
While granting relief to petitioner, the SC Bench consisting of the then CJI Chandrachud, Justices AS Bopanna and JB Pardiwala stated the following:
- The state has a positive obligation under Article 21 to protect the right to health, and particularly reproductive health of individuals.
- In terms of reproductive rights and autonomy, the state has to undertake active steps to help increase access to healthcare (including reproductive healthcare such as abortion).
2023 SC JUDGMENT TWIST
This judgment was delivered by 3- judge bench of the then CJI DY Chandrachud, Justice AS Bopanna and Justice Manoj Mishra.
In the year 2023, a 27-yr married women has filed a petition seeking a grant to terminate her 24 week pregnancy.
The petitioner reasoned following reasons behind going for late termination.
- pregnancy discovered at around 24 weeks due to a condition known as lactational amenorrhea, which leads to breastfeeding women not menstruating.
- Fetus age around 26 weeks
- As she suffers from post-partum depression, her mental condition does not permit her to raise another child, and her husband is the only earning member of their family and they already have two children to care for.
- If pregnancy is allowed to term it will cause mental injury to her.
- But SC didn’t grant her relief for the following conditions
- There are no fetal abnormalities
- Also, termination is not immediately necessary to save life of the petitioner
- The SC has here upheld the FUNDAMNETAL RIGHT of the unborn by stating the following
- If termination is granted it would mean stopping the heartbeat of the fetus.
- The court cannot do so. Also, the petitioner has not demanded so.
- In such scenario, if heartbeat will not be allowed to stop then the viable foetus would be faced with a significant risk of lifelong physical and mental disabilities
- Therefore, termination not granted.
WHY INDIA HAS ABORTION LAW?
Since unsafe abortions were the third leading cause of maternal mortality, and as many as eight women die every day due to unsafe abortions, the Union govt has enacted the Medical Termination of Pregnancy Act.
BUT THE 2021 LAW HAS GIVEN RELIEFS
- Extended Abortions benefits to all women – married, single and unmarried.
Inserted a Section 3 that raised the upper limit for permissible termination of pregnancy from twenty weeks to twenty-four weeks.
- It also extended the benefit of the legal presumption of a grave injury to the mental health of a woman on account of the failure of contraception, to all women and not just married women.
- Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, incest.
WHY EVEN 2021 MTP ACT DOES NOT RECOGNISE ABORTION FUNDAMENTAL RIGHT?
- MTP Act was enacted to dissuade the practice of sex determination. The law was made mandating criminal case against the doctor conducting sex determination and abortion.
- In Odisha, late termination of pregnancies (after 12 weeks) has been high in 10 districts
- MTPs account for around 31% of all abortions in the State.
- Nayagarh tops the district list in late MTPs.
- Analysis of accessed data shows districts having poor sex ratio have high proportion of post 12 weeks MTP.
- In order to curb the practice of sex determination, and maintain the proper sex ratio, the 2021 law has not recognized abortions a FUNDAMENTAL RIGHT.
ORISSA HC ORDER
In the instant case, Justice Sanjeeb Panigrahi was hearing the petition of MTP of a rape victim. The delay led to passing of two more weeks, when the fetus is already 24 week.
Justice Panigrahi, therefore, pronounced that when the 2021 MTP Act clearly has provisions, why delay?
Justice Panigrahi then directed the Odisha Health and Family Welfare Department to form a SOP, like the State of Maharashtra to deal with such cases exigently.
