New Delhi: legal practitioners who have favored judicial orders permitting medical termination of pregnancy in advanced stages say the action by courts with regard to such cases are a recognition of a woman’s fundamental right to life and the right to live with dignity. If the fetus has an abnormality or the surrounding circumstances of the mother are such that the life of the unborn child cannot be guaranteed to be dignified, the courts are rightly permitting medical termination of pregnancies, said lawyer Amit Mishra.
Mishra, who has represented several women seeking abortion, said while each case as to be seen on its own merit, the Indian law holds the interest of the mother as “paramount”.
“Medical termination of pregnancy (MTP) is allowed generally up to 20 weeks to all women without any discrimination. Any woman in India can go for MTP. In law, there is a special category where termination is allowed in the MTP Act up to 24 weeks for seven categories of women, including rape victims… Now unmarried women are also covered here,” he said.
The Bombay High Court had on January 23 allowed a married woman to terminate her 32-week pregnancy after the fetus was detected with severe abnormalities, saying a woman has a right to choose whether to continue her pregnancy or not. It held that the termination of pregnancy has to be solely the mother’s decision.
A few days ago, a Chief Justice of India DY Chandrachud-led bench directed the AIIMS to set up a medical board to explore the possibility of safe termination of pregnancy of an engineering student.
Prior to this, the supreme court had come out with a landmark judgment in September last year where it expanded the scope of the MTP Act to include unmarried women for abortion between 20-24 weeks of pregnancy, saying limiting the provision to cover only married women would render the law discriminatory and violative of Article 14 (equality before law).
Senior advocate Priya Hingorani said courts are passing orders on the right to abort while keeping in mind the “well-being” of pregnant women and their mental and physical state by deriving inspiration “straight from the Constitution” which guarantees right to life and to live with dignity.
“There may be issues for the child as well, particularly in rape cases..the child faces the stigma as well as the mother faces issues…I think it is a very good and very liberal interpretation,” the senior lawyer said.
On January 23, the Bombay High Court ruled that a woman has the right to choose whether to continue with her pregnancy or not and the decision is hers and hers alone to make as it allowed a married woman to terminate her 32-week pregnancy after the The fetus was detected with severe abnormalities.
Mishra said the MTP Act itself envisages termination of pregnancy at any stage if there is a threat to the life of the mother or there is a severe abnormality in the foetus.
“Section 5 of MTP act does not talk about length of pregnancy. It allows MTP if there is severe abnormality. If there is a threat to the mother or there is a severe abnormality, the length of pregnancy will not matter. If we see the Scheme of MTP Act, priority and interest of mother is paramount. Mother’s life is paramount in the overall scheme of the Act,” Mishra said.
He said a decision to abort is a “well-informed” decision of the parents, which is made after considering the quality of life of the unborn child.
“If there is abnormality in the fetus, he or she will remain handicapped or suffer mental retardation. In such cases, no parent wants the child to live that life. In such cases, it is better for the parent to take that decision. is a well informed decision by them. I am in favor (of directions for MTP by the courts in such cases). That is why section 5 is made by the Parliamenthe said.
Last year, the Delhi High Court had allowed termination of a 33-week pregnancy on account of fetal abnormalities and said while the right of a pregnant woman to terminate her pregnancy has been the subject matter of debate across the world, India recognizes the choice of a woman in her law.
The court said the “ultimate decision” in matters of abortion ought to recognize a woman’s choice to give birth and the possibility of a dignified life of the unborn child.
The Supreme Court had last year ruled that the meaning of the words “sexual assault” or “rape” under the rules of the MTP Act includes a husband’s act of sexual assault or rape committed on his wife.
It said the rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice on whether or not to bear a child on a footing similar to a married woman, and the ambit of reproductive rights is not restricted to The right of women to have or not have children and also includes the constellation of freedoms and entitlements that enable a woman to decide freely on all matters relating to her sexual and reproductive health.