Abortion Rights in India — What could, and should be

Introduction

Women living in every country, irrespective of its development status, are susceptible to the problems of unintended pregnancy. Lawful abortion is an important public health issue because of its negative association with the social, economic and health outcomes for both women and families. The question of abortion in India brings up a debate which is multilayered with medical, legal, moral and social arguments. It has always been a struggle to understand on whose side the rights fall heavier in order to tip the balance — the issues of whose life is to be given more value, and when life actually begins. That being said, there are several possible and perhaps viable solutions to the abortion debate, which only means that lawmakers and courts are required to deal with them in a sensitive manner, and any resolution, if it must last, must stem from a comprehensive consideration of all the facets involved. The cases arising have been decided by courts only on the basis of extreme emergency viz. of the likelihood of mental and physical damage to both the mother and the foetus/child[1], or to the trauma caused to survivors of rape, otherwise being staved off as a personal debate.

High Court on its Own Motion v. State of Maharashtra[2]

One such case which required urgent and developed consideration was recently before the Bombay High Court. In a public interest litigation under the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as “the MTP Act”), the High Court discussed the issues relating to termination of pregnancy unfortunately didn’t bring its findings to much needed closure.

A brief excursus of the matter before the High Court is necessary. Upon a direction from the High Court, a Judge of the City Civil and Sessions Court made a visit to a district women’s prison in Mumbai. During the visit, it was found that one of the female inmates had made an application seeking permission to terminate her four-month-old pregnancy, on conditions of ill-health, as well as having to already tend to a five-month-old infant. Her application in the said circumstances was supported by the Medical Officer. The matter was taken up by the High Court as a suo motu PIL. The particular inmate’s case which triggered this PIL was finally able to medically terminate her pregnancy on 3-5-2016. The Court considered similar circumstances in which several other female prison inmates were unable to obtain the requisite permission to medically terminate their pregnancies, despite being in dire conditions.

In this factual background, the Court considered the framework laid down under the MTP Act, and considered Sections 3, 4 and 5. Section 3 is set out as follows:

3. When pregnancies may be terminated by registered medical practitioners.—(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,—

(a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is; or

(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that—

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or

(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

Explanation I.—Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation II.—Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

(4)(a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian.

(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.

                                                                       (emphasis supplied)

Section 4 provides for the place at which a pregnancy may be medically terminated, and Section 5 excludes the application of Sections 3 and 4 in certain situations, inter alia, namely, termination of pregnancy will save the life of the pregnant woman regardless of whether the length of the pregnancy brings her within the ambit of Section 3(2). Section 5, further, also provides for the criminalisation of non-adherence to Section 4.

Due nod was given by the Bombay High Court to the legislative expansion of the term “injury” to include “injury to the mental health of the pregnant woman”. The Court then concerned itself directly with the interpretation of Explanation II as set out hereinbelow:

12. … We need to interpret Explanation II which is restricted only to a married couple. However, today a man and a woman who are in live-in relationship, cannot be covered under Explanation II whereas Explanation II should be read to mean any couple living together like a married couple.[3]

                                                                          (emphasis supplied)

Surprisingly, the Court has given no argumentation for the interpretation it has given to Explanation II. The bare finding, though in itself a clarification which was long overdue, is not supported with any form of logical or legal exposition. Even the term “living together like a married couple” has not been referenced, explained, or elucidated.

It may safely be assumed that the conclusion reached by the Court is based on the prevalent position in other statutes which were enacted to empower women in different spheres. One may consider the following definitions provided in the Protection of Women from Domestic Violence Act, 2005 (“the DV Act”):

2. Definitions.—In this Act, unless the context otherwise requires,—

(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

(q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of marriage may also file a complaint against a relative of the husband or the male partner.

                                                          (all emphasis supplied)

The Supreme Court[4], while interpreting the DV Act, gave recognition to the rights of unmarried couples living “in the state of marriage”. Recognising that Indian society is changing, and that the change was legislatively recognised by Parliament in the enactment of the DV Act, the Court set out certain parameters, adherence to which would bring a woman within the scope of the protection afforded by the DV Act. The Court likened a “relationship in the nature of marriage” to a common law marriage.[5]

The High Court however, does not provide any argumentation or even reference, based on the DV Act, D. Velusamy case[6], or otherwise, in support of its extension of Explanation II to couples in live-in relationships.

Justification for medical termination of pregnancy

The High Court has provided a fairly extensive, albeit general context for the reasons behind aborting a pregnancy, and the predicaments women are put in when faced with an unwanted pregnancy. The Court correctly recognised that pregnancy and marital status are unconnected:

13.  A woman irrespective of her marital status can be pregnant either by choice or it can be an unwanted pregnancy.[7]

(emphasis supplied)

Significantly, the High Court seems to subscribe to the view that a woman’s pregnancy is regardless of her marital status — which in itself is a bold step forward, considering the social and cultural fabric of India, a country which largely perceives premarital sex as taboo.

The Court went further to provide restricted reasoning for termination of pregnancy, by envisaging a case of a woman who already has a child and does not want a second one, or a woman who has resources not large enough to permit rearing a child:

14. A woman’s decision to terminate a pregnancy is not a frivolous one. Abortion is often the only way out of a very difficult situation for a woman. An abortion is a carefully considered decision taken by a woman who fears that the welfare of the child she already has, and of other members of the household that she is obliged to care for with limited financial and other resources, may be compromised by the birth of another child.[8]

                                                                          (emphasis supplied)

The Court then went on to propound the right of a woman to autonomy over her body, and bodily integrity, and commented on how a forced pregnancy will do great harm to the expecting woman’s rights, rather than opting out of it:

14. … 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.[9]

(emphasis supplied)

A reading of the judgment’s wavering reasons thus reveals at the very least that the opinion of the Court is that any woman, her marital status notwithstanding, has the right to decide how her body is to be treated. This can be traced back to the rulings of the Supreme Court which has time and again dealt with the inquiry of whether Article 21 includes within its ambit the right to privacy, and what exactly this privacy would entail.

In Kharak Singh v. State of U.P.[10], the Court unanimously struck down a regulation which imposed grave restrictions on certain persons, on the basis that they had a criminal record, or were likely to become habitual criminals or abet such criminals, as being violative of Article 21. Subba Rao, J. opined that Article 21 and the right of personal liberty provided thereby is a right to be free from restrictions or encroachments on one’s person. While dealing with a similar surveillance regulation in Gobind v. State of M.P.[11], the Court recognised that the right to privacy is perhaps too vague to be explicitly defined or demarcated. It suggested that privacy interest in autonomy must be placed in the context of other rights and values. The Court opined that the right to privacy must include “the personal intimacies” of inter alia marriage, motherhood, procreation, and child-rearing, but also cautioned that a catalogue approach was unlikely to provide an answer.

In the celebrated case of the death row prisoner, Auto Shankar, the Supreme Court while dealing with the question of the release of his autobiography, referred to the aforesaid two decisions, and then summarised the position as follows[12]:

26(1). The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a “right to be let alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent — whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

                                                                             (emphasis supplied)

A three-Judge Bench of the Supreme Court of India dealt with the rights of a woman over her body in a matter dealing with the issue of abortion directed by the High Court concerned in the case of a mentally disabled, pregnant woman.[13] The Supreme Court incorporated the right of a woman to make reproductive choices into the ambit of personal liberty under Article 21 of the Indian Constitution, and said that “It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating.”[14] However, despite observations in this tone, the Supreme Court has refrained from commenting on the validity of Explanation II, perhaps, choosing to stay clear of controversy thereby.

Thus, it is clear that the aspects of procreation and motherhood have been opined by the Supreme Court to be within the ambit of the right to privacy, which, arguably, is recognised within Article 21. It is also clear the Bombay High Court has emphasised that every woman has a right to bodily integrity, and to decide whether to embark on motherhood. A Hohfeldian rights — duties analysis will enable the balancing of the right of the woman over her own body on one hand with the “compelling interest” or duty of the State in protecting the life of the unborn child on the other. This juxtaposition of right and duty is what is reflected in Section 3 of the MTP Act, and there is no larger compelling interest of the State in cases of unmarried pregnant women.

With this background, it is apposite now to examine whether it would be meaningful to propose striking off the word “married” from Section 3 of the MTP Act, and expand the applicability of the MTP Act to all women, regardless of their marital status.

Need to expand the scope of the MTP Act

In the High Court judgment under consideration, the Court adverts to the international law position as follows:

15. According to international human rights law, a person is vested with human rights only at birth; an unborn foetus is not an entity with human rights. The pregnancy takes place within the body of a woman and has profound effects on her health, mental well-being and life.… The right to control their own body and fertility and motherhood choices should be left to the women alone. Let us not lose sight of the basic right of women: the right to autonomy and to decide what to do with their own bodies, including whether or not to get pregnant and stay pregnant.[15]

                                                                       (emphasis supplied)

This one paragraph lays down the bare essence of the raging worldwide debate more commonly referred to as “pro-choice v. pro-life”, and which basically pits the rights of women to have full autonomy over their bodies, against the rights of a foetus in the womb. This debate has its roots in the conflict among human rights law, religious principles, and social and cultural beliefs.

The Preamble to the MTP Act, another aid to statutory interpretation, is as follows:

An Act to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto.

  (emphasis supplied)

From the Preamble it is evident that the MTP Act was enacted to exculpate the commission of abortion in certain pregnancies. The kind of pregnancies which may be terminated are traceable back to Section 3 itself i.e. where continuing the pregnancy would pose a life-threatening risk to the life of the pregnant woman or grave injury to her physical or mental health, or where there is risk that the child, if born, would suffer from serious handicap owing to either physical or mental abnormalities.

The Statement of Objects and Reasons of the MTP Act, as is relevant, sets out as follows:

*                      *                      *

(3) There is thus avoidable wastage of the mother’s health, strength and, sometimes, life. The proposed measure which seeks to liberalise certain existing provisions relating to termination of pregnancy has been received (1) as a health measure—when there is danger to the life or risk to physical or mental health of the woman; (2) on humanitarian grounds—such as when pregnancy arises from a sex crime like rape or intercourse with a lunatic woman, etc.; and (3) eugenic grounds—where there is substantial risk that the child, if born, would suffer from deformities and diseases.

Once again, it must be highlighted that the framers of the MTP Act were fully cognizant of the fact that unwanted and unplanned pregnancies have a deleterious effect on not only the physical but also the mental health of a woman — this has been reinforced by the language of Explanation II to Section 3. The Act was brought into force to liberalise the existing legal framework which, prior to the Act, punished[16] the commission of any kind of abortion. Reading the two scenarios set out in Section 3, along with the Preamble and the Statement of Objects and Reasons, points out that certain kinds of pregnancies are to be terminated, and not that certain women only may terminate their pregnancies.

Foreign law

The Supreme Court has adverted to the Statement of Objects and Reasons of the MTP Act[17], and held that the provisions pertaining to abortion contained in the Penal Code, 1860 were subservient to Section 3. A reading of the Statement of Objects and Reasons of the MTP Act also reveals that the provisions relating to abortion in the Penal Code were enacted based on the relevant British law at the time.[18] It is pertinent therefore to notice the advances made in British law thereafter on the subject of abortion.

The Abortion Act, 1967[19], was in force at the time of the enactment of the MTP Act, and it is trite to mention that the Abortion Act, 1967 has no qualification in respect of marital status of a woman in order to be entitled to medical termination of pregnancy — the only qualifications are provided in Section 1 of the 1967 Act, which is similar in import to Section 3 of the MTP Act, in that it lays down the time period within which and the conditions under which medical termination of pregnancy may be carried out. Despite this, our law contains the controversial explanation which limits the option of abortion on the ground of contraceptive failure to only married women.

No mention of the abortion debate is considered holistic without a reference to the celebrated judgment of the Supreme Court of the United States of America in Roe v. Wade[20], where the Court, by a 7:2 split, deemed abortion a fundamental right under the United States Constitution, thereby subjecting all laws attempting to restrict it to the standard of strict scrutiny. The Court asserted that the right of privacy is broad enough to encompass a woman’s decision whether to terminate her pregnancy, and rejected the fetal “right to life” argument outright. Thus, regulations of abortion had to be justified by a “compelling State interest”, and legislative enactments regulating abortion had to be narrowly tailored to meet the compelling interests — i.e. strict scrutiny.

The Court in Roe[21] created the trimester framework (reflected in Section 3) to balance the fundamental right to abortion with the Government’s two legitimate interests: protecting the mother’s health and protecting the “potentiality of human life”. The trimester framework addresses when a woman’s fundamental right to abortion would be absolute, and when the State’s interests would become compelling.

In Planned Parenthood of Southeastern Pennsylvania v. P. Casey[22] the US Supreme Court confirmed a woman’s right to abortion, and further, upholding the “essential holding” of Roe[23], stated that women had a right to choose abortion before viability and that this right could not be unduly interfered with by the State. They asserted that this right was rooted in the Due Process Clause of the Fourteenth Amendment.

Amendment to the law

In view of the need to grant recognition to the right of a woman to terminate her pregnancy, set out hereinbelow is Explanation (ii) to Section 3, as contained in the Draft Medical Termination of Pregnancy (Amendment) Bill, 2014, which was notified over 2 years ago i.e. on 29-10-2014, inviting suggestions from all stakeholders.

Explanation (ii).—Where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grace injury to the mental health of the pregnant woman.                                                            (emphasis supplied)

The Draft Amendment Bill is also unambiguous on the change to be made to Explanation II by making the Act available to all women, regardless of marital status, as long as the nature of the pregnancy falls within Section 3. The Draft Bill, however, has not yet been introduced in Parliament, and will take its own course.[24] To that end, urgency is needed in view of recent research which unsettlingly suggests that a death is caused due to unsafe abortion every two hours — and this is likely to get worse in view of the US Government’s withdrawal of funding not only from reproductive health services but from an organisation’s entire health budget if they provide or offer information about abortion.[25] This would inevitably cause detriment to any kind of awareness sought to be roused regarding safe and sanitised abortion.

In any event, the Government too seems to have recognised that Explanation II requires overhauling to keep up with the prevailing social setup as well as the framework of rights accorded to women.

Conclusion

The gender equality movement in India has come a long way, and Indian women are today enjoying access to services and amenities at par with men in various sectors and spheres. But nobody talks about abortion, and nobody wants to consider the autonomy of a woman over her body, using the shield of “foetal rights” to cover the more deep-seated reason, being that Indian society still harshly frowns upon premarital sex, and still retains the opinion that women indulging in premarital sex are unchaste or unclean. This causes women to resort to surreptitious, and most likely harmful, methods of aborting pregnancies.

A step forward would therefore be the much-needed amendment to the MTP Act, to delete the offending portion of Explanation II to Section 3 i.e. the word “married” preceding “woman” in the said Explanation — as correctly envisaged in the Draft Amendment Bill of 2014. Giving legal recognition to every woman’s right to abortion will lead to greater awareness on the issue, and thus promote the need for a safe and medically secure atmosphere for the termination of pregnancy.

    *  Law Clerk-cum-Research Assistant, Chamber of Justice R.F. Nariman, Supreme Court of India (July 2015 — present).

[1]  X v. Union of India, 2016 SCC OnLine SC 745; Meera Santosh Pal v. Union of India, 2017 SCC OnLine SC 39;

X v. Union of India, 2017 SCC OnLine SC 124.

[2]  2016 SCC OnLine Bom 8426 : 2017 Cri LJ 218.

[3]  2016 SCC OnLine Bom 8426 : 2017 Cri LJ 218, 223.

[4]  D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.

[5]  D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.

[6]  (2010) 10 SCC 469.

[7]  2016 SCC OnLine Bom 8426 : 2017 Cri LJ 218, 224.

[8]  2016 SCC OnLine Bom 8426 : 2017 Cri LJ 218, 224.

[9]  2016 SCC OnLine Bom 8426 : 2017 Cri LJ 218, 224.

[10]  AIR 1963 SC 1295 : (1964) 1 SCR 332.

[11]  (1975) 2 SCC 148.

[12]  R. Rajagopal v. State of T.N., (1994) 6 SCC 632, 649, 650 at para 26(1).

[13]  Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1.

[14]  Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1, 15 at para 11.

[15]  2016 SCC OnLine Bom 8426 : 2017 Cri LJ 218, 224.

[16]  Relevant provisions of the Penal Code:

312. Causing miscarriage.—Whoever voluntarily causes a woman with child to miscarry, shall if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Explanation.—A woman who causes herself to miscarry, is within the meaning of this section.

316. Causing death of quick unborn child by act amounting to culpable homicide.—Whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

[17]  Jacob George v. State of Kerala, (1994) 3 SCC 430.

[18]  Statement of Objects and Reasons.—(1) The provisions regarding the termination of pregnancy in the Indian Penal Code which were enacted about a century ago were drawn up in keeping with the then British law on the subject.

[19]  http://www.legislation.gov.uk/ukpga/1967/87/data.pdf.

[20] 1973 SCC OnLine US SC 20 :  35 L Ed 2d 147 : 410 US 113 (1973).

[21]  1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[22] 1992 SCC OnLine US SC 102 : 120 L Ed 2d 674 : 505 US 833 (1992).

[23] 1973 SCC OnLine US SC 20:  35 L Ed 2d 147 : 410 US 113 (1973).

[24]  http://164.100.47.194/loksabha/Legislation/NewAdvsearch.aspx.

[25]http://www.independent.co.uk/news/world/asia/unsafe-abortions-kill-woman-india-two-hours-donald-trump-global-gag-rule-mexico-city-policy-foreign-a7559781.html