The right of women to choose how they conceive
Abortion:
- It is described as the ending of a pregnancy using a variety of techniques, such as medical surgery, before the foetus is capable of supporting its own life.
The MTP (Amendment) Act 2021:
- Termination owing to Failure of Contraceptive technique or Device: In accordance with the Act, a married woman may end a pregnancy up to 20 weeks if a contraceptive technique or device fails.
- Unmarried women: For this reason, it permits unmarried women to end a pregnancy.
Opinion Required for Pregnancy Termination:
- One Registered Medical Practitioner’s (RMP) opinion regarding pregnancy termination up to 20 weeks of gestation.
- views of two RMPs regarding the termination of a 20–24 week gestation pregnancy.
- If significant foetal abnormalities are detected, a pregnancy may be terminated after 24 weeks with the approval of the State-level medical board.
- Upper Gestation Limit for Special Categories: This raises the maximum gestation period from 20 to 24 weeks for women who fall into specific categories, such as rape survivors, incest victims, and other vulnerable women (such as minors and women with disabilities).
- Confidentiality: Unless authorised by an enacted statute, the “name and other particulars of a woman whose pregnancy has been terminated shall not be revealed.”
What the judge declared:
- The law only allowed for the termination of a pregnancy after 24 weeks in the following situations:
- The foetus had significant abnormalities.
- where there was an immediate threat to the woman’s life.
- Here, the Court denied the motion to use its extraordinary powers because physicians would have to abort a “viable foetus.”
Problems with the verdict:
- The court’s failure to pose what should be considered the key questions in order to settle the dispute:
- The ruling prioritises the rights of a foetus over the privacy and dignity of a pregnant mother.
- The MTP Act may only be enabling legislation, but the Court does not investigate this possibility.
- If the freedom to choose one’s reproductive path is essential,
- It is unlikely that the Court will feel prohibited from giving orders that go beyond the purview of the MTP Act.
- The petitioner experienced lactational amenorrhoea, therefore she didn’t realise she was pregnant until 20 weeks along.
- Amenorrhoea: A disorder in which nursing mothers experience amenorrhoea, or not getting their period.
The petitioner’s appeals:
- The petitioner’s mental illness prevented her from raising another kid since she was experiencing postpartum depression.
- Her spouse was the family’s only source of income, she claimed, and they couldn’t afford to raise a third child.
The court’s reply:
- According to Justice Kohli, she was unable to approve an abortion due to her “judicial conscience.”
- According to Justice Nagarathna, the petitioner’s choice has to be honoured.
- The woman had the highest priority when it came to her choices, and part of that right was the ability to have an abortion.
- Because its basic existence is owed to the mother, a foetus is dependent on her and cannot be distinguished from her as having a distinct personality.
Board of medicine:
- It verified that there were no anomalies and the foetus was viable.
- The petitioner’s prescription would not jeopardise the pregnancy in any way.
Big Bench Decision:
- CJI: The expectant woman’s mental and physical health is inevitably impacted whether she becomes pregnant unintentionally or through an incident.
- The right of a woman to terminate her pregnancy if it is endangering her mental or physical health is acknowledged and safeguarded under Article 21.
- The decision about whether or not to have an abortion is ultimately made by the woman, who alone has control over her body.
- The concept of human dignity gave rise to a woman’s freedom to make reproductive decisions free from unwarranted interference from the government.
- The inferred constitutional rights of foetuses in the ruling.
The Way Ahead:
- Except in situations where the particular requirements listed in the MTP Act are satisfied, a woman’s right to choose is terminated when her foetus becomes viable and is able to survive outside of her uterus.
- It is important to view the MTP Act as enabling legislation rather than as a statute that grants a liberty because it aims to give enforcement authority over a basic right.
- The Constitution clearly does not grant personhood to a foetus; instead, it grants people the guarantees of Articles 14 and 21 of the Constitution, which are the rights to equal protection and life.
- According to Justice Nagarathna, it is incompatible with our constitutional framework to view a foetus as anything other than dependent on its mother.
- To regard it as an independent, distinct entity would be to bestow onto it a set of rights that are not accorded to any other class of individuals by the Constitution.
- It would completely overturn a body of legal precedent that prioritises a woman’s ability to choose how she reproduces, a right guaranteed by Articles 14 and 21 of the Constitution.
