The Medical Termination of Pregnancy Act and the Fundamental Right of Reproductive Preference

Whether the Medical Termination of Pregnancy (MTP) Act is being a violation of Art. 14 & 21 of the Constitution?

Sec. 3(2) (a) is violation of Art. 14 & 21 of the Constitution:

Sec. 3(2) (a) of the Medical Termination of Pregnancy Act deals with cases where the span of pregnancy doesn’t go beyond 12 weeks, For a situation where the span of the pregnancy doesn’t go beyond 12 weeks pregnancy might be ended by a “registered medical practitioner” if a view is shaped by him that the prolongation of pregnancy would engage with jeopardy to the life of the pregnant lady or of indispensable harm to her corporeal or psychological well being or there is a significant peril that if the child were born, it would experience the ill effects of such bodily or psychological anomalies as to be gravely handicapped. So, the provision compels severe restriction on the employ of the “reproductive preference” of the woman by providing for a prerequisite of an opinion by the medical practitioner. The restraint puts undue trouble on the use of free “reproductive preference” and renders it worthless. This provision, in essence, makes the right to terminate pregnancy an exemption which is otherwise accredited as an innermost facet of the right to life, human dignity, self-determination, and independence.

The decisive medical evidence has recognized that abortion in the first trimester involves minor danger to a person than the risks involved when pregnancy is carried to a full term. Judicial cognizance of this fact has been taken by the US Apex Court in Roe vs Wade[1]. Although in later judgments of the US Apex Court it has been noted that with the encroachment of science and technology safer abortions are possible even at later stages even after the first trimester and held that trimester based outline have been faded with the advancement in science.[2]

It stated that at this stage of pregnancy there is no justifiable interest of the State involved for intrusive in the right of “reproductive preference” of the woman and therefore there should not be any involvement by the State curtailing the right of the women to terminate the pregnancy. Only authoritarian measures aimed at safe abortions can be made. The restriction imposed by the impugned provision does not have nexus accompanied by the intention of the Act which is the prevention of maternal humanity and complications coupled with unsafe abortion and are unnecessary and inconsistent and fail to meet the test laid down in Justice KS Puttaswamy (retd) vs U.O.I[3]. Moreover, If a woman doesn’t wish to prolong with her pregnancy, and after that convincing her to do as such, symbolizes a negation of the women’s corporal integrity and worsen her psychological suffering which would be detrimental to her mental health.[4]

As in the case of Meenka Gandhi vs U.O.I[5]the Hon’ble Apex Court held that “life” doesn’t signify mere animal existence. Even the right to health accepted by Art. 21 of the Constitution give Constitutional protection to the choice of the woman to choose a path which has lesser physical, mental and socio-economic adverse consequences on her. In observation of the above, Sec. 3(2) (a) fails to meet the requirement of rationality and proportionality and is arbitrary.

 Gradually most countries are permitting abortion on the request of the woman with varied gestational limits.

 Sec. 3(2) (b) is violative of Art. 21 of the Constitution?

Sec. 3(2) (b) allow termination of pregnancy beyond 12 weeks and not exceeding 20 weeks provided two “registered medical practitioner” are of the opinion that the prolongation of pregnancy would engage with jeopardy to the life of the pregnant lady or of indispensable harm to her corporeal or psychological well being or there is a significant peril that if the child were born, it would experience the ill effects of such bodily or psychological anomalies as to be gravely handicapped.

 Restricting the permitted span of pregnancy to 20 weeks is extreme and inconsiderate. With the initiation of science and technology diagnosis of foetal abnormalities is achievable at successive stages and with the advancement of science and technology it has turn into convenient to terminate the pregnancy even at later stages.

As it has been stated by the Hon’ble Bombay High Court in XVZ vs UOI[6]that ‘it is not as if all contingencies express themselves only within the first 20 weeks of pregnancy, even in cases where a pregnant mother is regularly following up her gynaecologist, double marker test is undertaken between 10th and 13th week; triple marker test between 18th and 20th week and the crucial abnormality examined in, around the 20th week. Many serious foetal anomalies may not even be diagnosable until twenty weeks as many pregnant mothers may not even have access to suitable diagnostic tools, particularly in rural areas. In many cases, complications can develop as the pregnancy advances. In such cases, as long as the medical opinion does not suggest that Medical Termination of Pregnancy itself is a grave menace to the corporal life of the pregnant mother, the law cannot plead helplessness particularly where circumstances set out in clauses (i) and (ii) of Sec. 3(2) (b) of the MTP Act manifestly exist.’ also the Bombay High Court rightly stated that abortion is over and over again the lone method out of very thorny circumstances for a woman. Abortion is a cautiously well-thought-out conclusion taken by a woman who worries that the wellbeing of the baby she previously has, and of other family members that she is pleased to be bothered for with restricted monetary and other assets, possibly will be bargained by the delivery of the other infant.[7]

Explanation 2 to Sec. 3(2) is violative Art. 14 & Art. 21 of the Constitution

Explanation 2 of sec 3 amount to antagonistic inequity aligned with single women, devoid of any nexus to the reason which is to abort an undesired pregnancy. The reason for existing is to make simple a woman to abort an accidental and undesired pregnancy. As a pregnancy include various mortal, mental, social and practical results. Watching the reason there is no support for not agreeing to give the same guard to a solitary woman. On the divergent, an unwanted and unintentional pregnancy will consistently in the case of an unmarried woman develop more crucial consequences. The provision treats equals unequally amounting to intimidating discrimination and therefore is being violative of Art. 14 of the Constitution. The provision also unfavourably affects the sexual independence of single women or unmarried women.

Also, of the social stigma emotionally involved with pregnancy in bachelorette woman which is predominantly prevailing in minors, they are compulsorily compelled to terminate pregnancy from illegal abortion health centre which obliterates their right to secure abortion which is also a part of the right to health under Art. 21.

Live-in Relationship and Right to Abortion

As in several cases, Hon’ble Apex Court has ruled that when an unmarried couple living with each other under the same roof mutually as married couples then, it will appraise as valid matrimony in the eyes of Law.[8] Live-in-relationship might be decadent in the vision of the conservative Indian civilization although it isn’t “prohibited” in the eyes of law.

  Live in relation is deemed as a valid marriage in the eyes of law then, also this pro-choice right was barely enjoyed by married women till 2016; the Bombay High Court has recognized this right to women who are in a live-in-relationship. The HC held “the provisions of the MTP Act, doesn’t apply for those women who are living in live-in relationships, should be implied to be relevant also to couples who live like a married couple”.[9] Thus, by pronouncing his the Court is with the opinion that any female, in spite of her matrimonial status, has the right to come to a decision how her corpse is to take care of.

[1] Roe vs Wade, S.C.C. Online US SC 20 (1973).

[2]Hodes & Nauser vs Derek Schmidt Appeal No. 114,153.

[3] KS Puttaswamy (retd) vs U.O.I, MANU 2017 SC 1604.

[4] High Court on its Own Motion v. State of Maharashtra, 2016 SCC Online Bom 8426.

[5]Meenka Gandhi vs  U.O.I, 1978 (1) SCC 248.

[6]XVZ vs UOI, 2019 SCC Online Bom 550

[7] High Court on its Own Motion vs State of Maharashtra, 2016 SCC Online Bom 8426.

[8]Badri Prasad vs Dy. Director of Consolidation, AIR 1978 S.C. 1557; S. Khushboo vs kanniammal & Anr, JT 2010 (4) S.C. 478; Madan Mohan Singh & Ors vs Rajni Kant & Anr, AIR 2010 S.C. 631; Tusla vs Durghatiya, (2008) 4 S.C.C. 520.; S.P.S. Balasubramanyam vs Suruthayan alias Andali Padayachi and others, AIR 1992 SC 756, (1992) Supp (2) S.C.C. 304.

[9] High Court on its motion vs the State of Maharashtra, (2016) S.C.C. Online Bom 8426: 2017 Cri LJ 218.

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