Op EdsOP. ED.

Introduction

The Supreme Court of the United States is once more faced with the question involving abortion rights, the Supreme Court will in Dobbs v. Jackson Women’s Health Organisation[1] revisit the precedent set in Roe v. Wade[2] where the Court had upheld the concept that privacy encompasses the right of a woman to terminate her pregnancy. In Roe[3], the Supreme Court had also enunciated the principle that when the foetus is viable, that is, it can survive on its own outside the womb, abortion may be prohibited. This period of viability was considered to be 24 to 28 weeks. The position in India is similar and a woman may terminate her pregnancy with the opinion of a single medical practitioner up to twenty weeks and with the consultation of two medical practitioners up to 24 weeks. This position may be changed by the Supreme Court in June 2022, through its judgment in Dobbs v. Jackson Women’s Health Organisation[4] in light of recent medical and sociological advancements.

All of this has brought to the fore a question that should have been settled since long. The balance between a woman’s right to life and privacy vis-à-vis the right to life of the unborn child. This debate has an additional layer to it which adds to the urgent need to settle this jurisprudence. The question involves legal as well as medical attention, the right to life debate gains further traction based on the unborn child’s feasibility to survive outside the mother’s womb. Should we have a category conclusion on this (from the medical world), would we then be able to say that the right of the life of the unborn child should be paramount? This and more could be answered by the United States Supreme Court sometime in June 2022.

In January 1973, the Supreme Court of the United States of America in a 7:2 majority decision delivered its judgment in Roe v. Wade[5], holding a Texas statute unconstitutional which banned abortions except when necessary to save the life of the mother.

Jane Roe was the fictional name chosen by Norma McCorvey, petitioner, to protect her identity. McCorvey was an unmarried pregnant woman residing in Dallas County, Texas and wished to terminate her pregnancy by an abortion performed by a competent, licensed physician, under safe clinical conditions. She contended that the Texas laws were unconstitutional for being vague and infringed on her right to privacy. Roe wished to sue on behalf of herself and all women similarly situated, thereby making it a class action lawsuit.

Subsequently, Dr James Hubert Hallford, a physician who had previously been arrested in violation of the Texas statute and had two pending prosecutions, along with the Doe’s, a married couple whose wife was advised not to get pregnant due to medical reasons, also filed companion complaints against the constitutionality of the Texas statute. The impugned Texas statutes were Articles 1191-1194 and 1196 of the State’s Penal Code.

The District Court granted declaratory relief though not injunctive, and held that it is a person’s fundamental right to choose whether to have children and such right is protected by the Ninth and Fourteenth Amendment. The District Court held the Texas criminal abortion statutes to be void because they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiffs’ Ninth Amendment rights. As per the Ninth Amendment,

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The law, as it then stood, declared that if any person with the consent of the woman deliberately administers or knowingly procures to be administered any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion shall be confined to prison for not less than two up to five years. If such abortion was without her consent, the punishment was doubled.[6]

The term “abortion” was defined as the life of the foetus or embryo destroyed in the woman’s womb or that a premature birth thereof be caused.[7] To furnish the means for abortion and an attempt to abort were also punishable under the Code.[8] The exception to abortion which did not attract criminal liability was when the abortion was procured or attempted by medical advice for the purpose of saving the life of the mother.[9]

The Supreme Court also dealt with the compelling interest of the State in balancing the rights of the potential life and rights of the pregnant woman, the Court then brought to the front the concept of viability. Viability means when the foetus has the capability of meaningful life outside the mother’s womb. The Court held that, the regulation protective of foetal life will be logical and biological.

The Court also resolved certain vital questions in 1973 through this judgment including the standing of “right to privacy”. The Court held that while the right to privacy was not explicitly mentioned in the Constitution, the right finds its place in the Fourteenth Amendment. The scope of right to privacy was further widened to include the abortion decision, although not absolute and subject to limitations.

The Fourteenth Amendment[10] to the US Constitution reads:

  1. … No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;

The Court concluded by creating distinction based on the term of the pregnancy, trimester wise.  For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation was to be left to the medical judgment of the pregnant woman’s attending physician. After the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

Law in various States

In Texas, the Senate Bill No. 8[11] was signed into law on 19-5-2021. The Texas law is one of the most significant anti-abortion laws in force in the country. As per the law, also sometimes referred to as the “heartbeat law”, abortions after 6 weeks are banned. The law provides no exception to horrendous situations like rape and incest, which cause extreme psychological suffering to the woman. Even though, cases of incest may lead to abnormalities in the child so conceived, however, the law makes all such abortions also unconstitutional and makes no special exceptions in these cases either. This Act goes a step further by implementing a “sue thy neighbour policy”[12], wherein the Act provides that any person, other than an officer or employee of the State or local Government entity in the State may bring a civil suit against another where he is of the opinion that abortion has been undertaken in contravention of the Act.If he succeeds in the suit, he shall be awarded injunctive relief and also statutory damages of not less than $10,000 for each abortion that the defendant performed or induced in violation of the sub-chapter.[13]

Various other States in the United States of America have what are called trigger bills which would go into effect, and substantially regulate or completely prohibit abortions if the Supreme Court overrules Roe v. Wade[14]. One such State is Utah, Senate Bill 174[15] was signed into law by Utah Governor Gary Herbert in 2020. S.B. 174 prohibits all abortions except in cases of certain exceptions. A woman can receive an abortion if the pregnancy poses a life-threatening risk to the woman or has a serious risk of substantial and irreversible impairment of a major bodily function. It also grants exemption if the foetus has a defect that is uniformly diagnosable and uniformly lethal or has a severe brain abnormality that is uniformly diagnosable.

However, rape and incest exceptions are only granted in situations of a reported crime, hence the woman must have necessarily reported the crime to the law enforcement in order to get an abortion arising out of the same. This is extremely burdensome as this would often put the life of the woman at risk or cause her even more mental trauma and agony.

An Idaho trigger law, Senate Bill No. 1385,[16] also criminalises abortions. Criminal abortion attracts a sentence of imprisonment of no less than two (2) years and no more than (5) years in prison. Further the law imposes sanctions on the medical professionals performing, attempting or assisting in performing abortions. As per the statute, if convicted, their professional licence may be suspended by the appropriate licensing board for a minimum of six (6) months upon a first offence and shall be permanently revoked upon a subsequent offence.

There are various States in the United States of America which have abortion laws influenced by religious and conservative opinions, which will be in force if the precedent set by the Supreme Court is overruled. Various pro-choice organisations such as Planned Parenthood[17] are fighting to challenge these laws and are continuing to offer support in States with statutes criminalising abortions.

Present dispute before the Supreme Court

On 19-3-2018 the State of Mississippi enacted a new law named “Gestational Age Act”[18] which provided that in most cases an abortion cannot be performed after 15 weeks. As per the legislature “most abortions performed after 15 weeks’ gestation are dilation and evacuation procedures and that “the intentional commitment of such acts … is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.”[19] While noting that the State has a legitimate interest in protecting the life of the unborn[20] the legislature was of the opinion that at 12 weeks’ gestation, an unborn human being can open and close his or her fingers, starts to make sucking motions, and senses stimulation from the world outside the womb. Importantly, he or she has taken on “the human form” in all relevant aspects[21]. Thus, the reasoning supported for the Gestational Age Act was that after the completion of 15 weeks the abortion procedure is merely ripping apart the child and removing the dead child from the womb, a child who can sense simulations of outside world’s right to life is taken away by the abortion procedure. Additionally, they also noted various risks to the health of the woman carrying the child including physical as well as psychological effects.

The Gestational Age Act was in conflict with the decisions of the Supreme Court of the United States in Roe v. Wade[22]and Planned Parenthood of Southeastern Pennsylvania v. Casey[23], where abortions before the point of viability were held to be allowed and the State could regulate abortions thereafter, however the Gestational Age Act implicitly banned all abortions after 15 weeks.

When the Act was signed into law, Jackson Women’s Health Organisation filed a suit challenging the Act and prayed for a temporary restraining order before the District Court. The Court granted temporary restraining order and in a summary judgment held that the Act was unconstitutional. The Court noted that “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on non-therapeutic abortions[24]”.The States shall not ban abortions prior to viability, which the State of Mississippi through the Gestational Age Act was seeking to do. The decision of the District Court was appealed to the United States Court of Appeals for the Fifth Circuit, which affirmed the decision of the District Court.

The State has appealed to the Supreme Court of the United States of America against the decision of the Court of Appeals, the oral arguments for the same were concluded in December 2021 and the Court is expected to pronounce the judgment in June 2022.

This decision is anxiously awaited since a decision in favour of the appellants would effectively overturn Roe v. Wade[25] and Casey[26], overturning fifty years of precedent in the country. It is estimated that the judgment in Dobbs v. Jackson Women’s health Organisation[27], will be delivered by the Supreme Court in June 2022, the Supreme Court may decide in favour of the rights of the unborn child. Noting the medical advancements in the 21st century, the Court may decide that an unborn child will be able to survive earlier than the “viability condition” of the foetus, as the Court has previously discussed. The chances of the foetus surviving with the help of medical facilities such as new age life support and advancements could possibly help the Court in ruling for a shorter period acceptable for abortion. The point in time where “life” began for a foetus in 1973 may well differ from that in 2022.

Indian perspective

The abortion laws in India are governed by the Medical Termination of Pregnancy Act[28] (hereinafter referred to as “the MTP Act”), and the Penal Code, 1860[29]. The Penal Code criminalises voluntarily causing miscarriage to a woman (or done by the woman herself) except in cases where it is necessary to save the life of the woman.[30]

However, when the termination of pregnancy is carried out by a registered medical practitioner, the liability is saved by MTP Act. The MTP Act provides for termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto.[31]

As per the MTP Act, 1971 a pregnancy may be terminated on the opinion of a single registered medical practitioner if the period of pregnancy didnot exceed 12 weeks, and on the opinion of two registered medical practitioners if the period exceeded 12 weeks but didnot exceed 20 weeks. If they were of the opinion that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health or 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.[32] There was an amendment brought about to the abovementioned Section 3 in 2021 vide the Medical Termination of Pregnancy (Amendment) Act.[33] As per the Amendment Act, the gestational period has been increased, in light of medical advancements, from 12 weeks to 20 weeks where the pregnancy may be terminated on the opinion of one registered medical practitioner and from 20 weeks to 24 weeks, in case of such category of woman as may be prescribed by rules made under the Act, if not less than two registered medical practitioners are of the opinion that the termination is advisable in view of the provisions of the MTP Act.

The 2021 Amendment brought the MTP Act, 1971 in sync with the requirements of the present times. The MTP Act provided for situations 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. Understanding the changing times and to bring the law in sync with these times, the 2021 Amendment Act has amended the provision and in place of married woman or her husband the words “any woman or her partner” have been used. This Amendment now makes the provision applicable to an unmarried as well as a married woman, thus substantially helping a woman regain her reproductive autonomy.

Most importantly a new section[34] has been added to the MTP Act by the 2021 Amendment, which puts the right to privacy of the woman undergoing the abortion in the forefront. It mandates that no registered medical practitioner shall reveal the name and other particulars of a woman whose pregnancy has been terminated under this Act except to a person authorised by any law for the time being in force. Whoever contravenes this shall be punishable with imprisonment which may extend to one year, or with fine, or with both.

As per the Statements and Objects of the Bill[35], the legislators understood that with the passage of time and advancement of medical technology for safe abortion there was a possibility of increasing the period of gestation. It was also felt that there was a need to make legal and safe abortion more accessible which would in reduce maternal mortality and morbidity caused by unsafe abortion and its complications. It was also noted that several writ petitions praying for permission for aborting pregnancies at gestational age beyond the permissible limit as per the MTP Act on the grounds of foetal abnormalities or pregnancies due to sexual violence faced by women. A nine-Judge Bench of the Supreme Court in 2017 has held that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21”, the right to privacy is now a fundamental right of the people.[36]

Right to life

The main contention that has divided the people, the country and the courts for years is:  What takes precedence, a woman’s right to have an abortion and have the last word over her reproductive autonomy or an unborn child’s right to life.

As per legal precedent, the courts have time and again tried to balance the rights of the two and the legal jurisprudence that has developed is simple, pre viability the State has practically no interference in the decision of the woman to abort a child however post viability regulations are necessary but prohibitions are not favourable. The medical community is as divided in their opinion of abortion as the rest of the world.

The Supreme Court of the United States through  O’Connor,  Kennedy, and  Souter, JJ. delivered the judgment in Planned Parenthood of Southeastern Pennsylvania v. Casey[37], strongly noted that even after 19 years of the Supreme Court pronouncing that the Constitution protects a woman’s right to terminate her pregnancy in its early stages[38] the definition of liberty is still questioned.  The right of liberty flows through the Fourteenth Amendment and the constitutional protection of a woman to terminate her pregnancy is derived from the due process clause of the Fourteenth Amendment.[39]

The main argument for right to life that the Supreme Court in Dobbs v. Jackson Women’s Health Organisation[40] heard is that the viability rule must be rejected. While the Court has previously determined that a foetus is at most the potentiality of life[41], it has since agreed that a foetus is a living organism while within the womb, whether or not it is viable outside the womb[42]. Certainly, the Court has a duty to protect the right to life inside the woman, and they may do so by regulation. However, they cannot do so by completely prohibiting a woman from taking the ultimate decision to terminate the pregnancy before viability. The Court has instead noted that any decision made by the woman should be fully informed of all consequences including consequences she may face physically and emotionally, and the State must help in this regard.

Further, advocates favouring right to life of unborn child argue that the Fourteenth Amendment to the American Constitution uses the language “person” and extends to an unborn person, even though this argument was not accepted in Roe v. Wade[43]. Interestingly, even while rejecting the argument and in cases since, the Supreme Court has not delved into the argument – “When exactly does life begin”, as they stated in Roe v. Wade[44],

  1. … We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

Conclusion

Till date there is no sufficient jurisprudence to determine when exactly in the process starting from fertilisation and ending in the birth of human child does life really begin. This is the most important question which must be determined in order to finally conclude the debate surrounding abortions, it is undoubtedly the State’s duty to balance the rights of both the potential life and the woman birthing the child. If the Supreme Court of the United States in Dobbs v. Jackson Women’s Health Organisation[45], overrules the nearly five decades old case of Roe v. Wade[46], it would cause immense fetters on the reproductive rights of the woman. Many trigger laws will come into force which will immensely regulate the lives of women wishing to have an abortion. The current position taken by the Supreme Court in 1973, and reiterated ever since is that undue regulations must not be put on a woman’s choice to terminate her pregnancy. In this judgment[47] abortion may be allowed up to 24 weeks, with regulations, if required, this position is also in sync with the Indian position after the 2021 Amendment to the Medical Termination of Pregnancy Act, 1971.

In light of medical advancements over the past five decades, we are now in a better position to determine when the foetus can be considered alive and till what time is it safe for a woman to undergo abortion. This must not be standardised since medical advancements in different countries are at different stages and thus the safety of the woman must be considered priority.


 *Partner, L&L Partners, New Delhi.

**Final year law student at Amity Law School, Guru Gobind Singh Indraprastha University, Delhi. Author can be reached at <shaaivishukla999@gmail.com>.

[1] Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organisation, et al., No. 19-1392.

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

[3]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[4] Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organisation, et al., No. 19-1392.

[5]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[6]Texas Penal Code, Art. 1191.

[7]Texas  Penal Code, Art. 1191.

[8]Texas Penal Code, Arts. 1192-1193.

[9]Texas  Penal Code, Art. 1196.

[10]US Constitutional Amendment 14 (adopted 9-7-1868).

[11]https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00008F.pdf.

[12] S.B. No. 8, S. 171.208(a).

[13]S.B. No. 8, S. 171.208(b).

[14]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[15]https://le.utah.gov/~2020/bills/static/SB0174.html.

[16] https://legislature.idaho.gov/wp-content/uploads/sessioninfo/2020/legislation/S1385.pdf.

[17]https://www.plannedparenthood.org/planned-parenthood-center-for-choice/texas-abortion-laws.

[18]House Bill No. 1510.

[19]House Bill No. 1510, found at: http://billstatus.ls.state.ms.us/documents/2018/pdf/HB/1500-1599/HB1510SG.pdf.

[20]Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992 SCC OnLine US SC 102 : 505 US 833, 873 (1992).

[21]House Bill No. 1510; Gonzales v. Carhart, 2007 SCC OnLine US SC 25 : 550 US 124, 160 (2007).

[22]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[23]1992 SCC OnLine US SC 102 : 505 US 833 (1992).

[24]Jackson Women’s Health Organisation v. Currier, 349 F Supp 3d 536, 539 (S.D. Miss. 2018) [quoting Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992 SCC OnLine US SC 102 : 505 US 833, 860 (1992) (plurality opinion)].

[25]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[26]1992 SCC OnLine US SC 102 : 505 US 833 (1992).

[27] No. 19-1392.

[28]Medical Termination of Pregnancy Act, 1971.

[29]Penal Code, 1860.

[30]Penal Code, 1860, S. 312.

[31]Medical Termination of Pregnancy Act, 1971, Preamble.

[32]Medical Termination of Pregnancy Act 1971, S. 3 (unamended).

[33]Medical Termination of Pregnancy (Amendment) Act, 2021.

[34]Medical Termination of Pregnancy (Amendment) Act, 2021, S. 5-A.

[35]Medical Termination of Pregnancy (Amendment) Bill, 2020.

[36]K.S. Puttaswamyv. Union of India, (2017) 10 SCC 1, 637, para 652.3.

[37]1992 SCC OnLine US SC 102 : 505 US 833 (1992).

[38]Roe v. Wade, 1973 SCC OnLine US SC 20 : 35 LEd2d 147 : 410 US 113 (1973)..

[39]Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992 SCC OnLine US SC 102 : 505 US 833, 873 (1992).

[40]Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organisation, et al., No. No. 19-1392.

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

[42]Gonzales v. Carhart,2007 SCC OnLine US SC 25 : 550 US 124 (2007).

[43]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[44]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[45]Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organisation, et al., No. 19-1392.

[46]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

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

Case BriefsHigh Courts

Delhi High Court: While explaining whether a pregnant woman can seek termination of pregnancy beyond 24 weeks, Jyoti Singh, J. (Vacation Judge) found the mental health of the petitioner to be an essential factor for allowing termination of pregnancy.

Petitioner was 33 years old and had been undergoing regular checkups from the 5th week of her pregnancy. From the ultrasonography report conducted during the 20th week of gestation, it was revealed that there was choroid plexus cyst in the left lateral ventricle of the foetus. However, since the foetus was only 20 weeks old, foetal echocardiography was not performed. On completion of 24 weeks, foetal Echo-Doppler test was done, and various anomalies were found in the heart of the foetus.

After taking opinions from various doctors, it was found that the survival of the infant would be 50% in the very first year of their birth and even if they do survive the first year, repeated surgeries would have to be carried out and success of the surgeries would depend upon the stimuli of the baby to the environment.

Further, since the permissible limit of 24 weeks under the Medical Termination of Pregnancy (Amendment) Act, 2021 was over, the petitioner approached this Court seeking direction from the respondents to allow her to undergo medical termination of pregnancy.

Court had directed respondent 3/AIIMS to constitute a Medical Board to examine the petitioner, who had on the said date completed 28 weeks of pregnancy, to furnish its report regarding the necessity and feasibility of medical termination of the pregnancy.

The gist of the medical board’s opinion was also that the foetus had substantial abnormalities.

Analysis, Law and Decision

High Court observed that the petitioner in the present matter had completed 28 weeks of pregnancy, which was beyond the maximum period of 24 weeks, permissible under the MTP Act and therefore, on account of the proscription in Section 3 of the MTP Act, the petitioner had approached the Court, seeking directions to the respondents to allow the petitioner to undergo medical termination of the pregnancy.

The only focal point of the matter was that the petitioner sought pregnancy on account of the fact that the foetus was suffering from a severe cardiac anomaly.

As per Section 3(2)(b)(i) of MTP Act, grave injury to ‘mental health’ of a pregnant woman is a legal ground available to the woman to seek medical termination of pregnancy, with the caveat that the maximum period permissible under the Act, for termination, is 24 weeks.

Petitioner’s counsel took the Court to various decisions wherein cases of substantial foetal abnormalities and/or where the said abnormalities had a consequent impact on the mental health of the pregnant woman, Supreme Court and High Courts, both have permitted medical termination of pregnancy, beyond the statutory cap of 24 weeks.

While referring to a catena of decisions in view of the present matter, Court lastly referred to a judgment of Bombay High Court in XYZ v. State of Maharashtra, 2021 SCC OnLine Bom, 3353, wherein dealing with an identical issue, the Court allowed the petitioner to undergo medical termination of her pregnancy, finding that continuation of pregnancy could cause grave injury to her mental health.

Court noted the medical board’s opinion that the entire life of the child, if born, would largely depend on the clinical condition and quality of medical care provided to the child.

“…entire medical regime would expose the child to intra and post-operative complications and may lead to further complexities, adversely impacting the quality of the child’s life.”

Hence, High Court held that the mental frame of the petitioner, a mother, taking a tough call to terminate pregnancy, was understandable.

The Bench also added that the above-said circumstances would cause grave injury to the mental health of the petitioner.

Therefore, the petitioner is permitted to undergo medical termination of pregnancy at a medical facility of her choice. [Pratibha Gaur v. GNCTD, 2021 SCC OnLine Del 5573, decided on 31-12-2021]


Advocates before the Court:

For the Petitioner:

Ms. Sneha Mukherjee and

Ms. Surabhi Shukla, Advocates.

For the Respondents:

Ms. Hetu Arora Sethi, Additional Standing Counsel with Mr. Siddarth Aggarwal, Advocate for R-1 & 2.

Mr. Tanveer Oberoi, Advocate for R3.

Case BriefsHigh Courts

Karnataka High Court: N S Sanjay Gowda, J., directed the Medical Practitioners to terminate the pregnancy in accordance with the provisions of the Medical Termination of Pregnancy Act, 1971.

The facts of the case are such that the petitioner was subjected to rape when she was a minor; thereby the crime was registered by the Athani police station. The petitioner’s request for termination of her pregnancy was not entertained in view of the fact that the length of pregnancy was more than 24 weeks. Hence instant petition was filed seeking for a writ of mandamus to the respondent 2 to medically terminate the pregnancy of the petitioner who is now a major.

The Court further directed that a Medical Board be constituted comprising of Gynecologist, a Pediatrician and a Radiologist or Sonologist and a Psychiatrist and directed the Board to render an opinion as to whether continuation of pregnancy would constitute a grave risk to the physical and mental health of the petitioner vide order dated 29-11-2021. The Medical Board, thus advised that the pregnancy of the petitioner is required to be terminated as continuation of the pregnancy would endanger physical and mental health of the petitioner.

The Court observed that the petitioner is a student studying in 2nd year PUC and her mother is eking out of her livelihood as an agriculturist as her father is no more and she has been raised by her mother alone. As the petitioner is still studying and is being raised by a single parent, as affirmed by the psychiatrist, continuation of the pregnancy would definitely constitute grave risk to the mental and physical health to the petitioner.

The Court held “this is an extraordinary case which requires a direction to be issued to the 2nd respondent for terminating the pregnancy of the petitioner. The 2nd respondent shall ensure that the Medical Practitioners terminate the pregnancy in accordance with the provisions of the Medical Termination of Pregnancy Act, 1971 forthwith.”[Kumari V v. State of Karnataka, WP No. 104672 of 2021, decided on 30-11-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For petitioner: Mr. Sangamesh S Ghulappannavar

For respondent: Mr. V S Kalasurmath

Case BriefsHigh Courts

Orissa High Court: S. K. Panigrahi, J. disposed of the petition and refused to terminate 24+ week pregnancy of a rape victim.

The facts of the case are such that the petitioner is a rape victim assailing the order dated 09-07-2021 passed by the Ld. S.D.J.M. under Section 3 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as “the
MTP Act” for brevity). Being aggrieved by the order, the present petition under Section 482 of the Code of Criminal Procedure, 1973 has been filed in the instant court.

Counsel for petitioner submitted that the petitioner has been pregnant for more than 4 months and feels morally insecure to step out of her house due to horrendous social stigma attached to such crime. The social relations between men and women in which violence against women is often taken for granted, especially in cases like these the judge do decide their fate in the decision to abort or not to abort the pregnancy.

The Court observed that in the cases of this genre, the medical practice of abortion,  legal and illegal, has expanded but the Psycho-physiological and  social condition of the rape survivors form the essential aspects of  medical judgment especially in therapeutic abortion case.

In the absence of any report by medical team ascertaining the actual  period of pregnancy, the Court directed the office of the Advocate General in  order to facilitate the petitioner for testing of the period of  pregnancy accurately by a team of doctors as prescribed under the  Act. Accordingly, the test was conducted and report submitted which suggests it may be unsafe for getting the termination done at this stage. In fact, allowing the termination at  this stage could endanger the mother’s life or even lead to  substantial and irreversible impairment of a major bodily function.

The Court relied on judgment Suchitra Srivastava v. Chandigarh Administration (2009) 9 SCC 1 wherein it was observed that perusal of the provisions of the MTP Act makes it clear  that ordinarily a pregnancy can be terminated only when a medical  practitioner is satisfied that a ‘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’ [as per Section 3(2)(i)] or when  ‘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’ [as per Section 3(2) (ii)]. While the satisfaction of one medical practitioner is required for terminating a pregnancy within twelve weeks of the gestation period, two medical practitioners must be satisfied about either of these grounds in order to terminate a pregnancy between twelve to twenty weeks of the gestation period.

The explanations to this provision have also contemplated  the termination of pregnancy when the same is the result of a rape  or a failure of birth-control methods since both of these  eventualities have been equated with a ‘grave injury to the mental  health’ of a woman. In all such circumstances, the consent of the pregnant woman is an essential requirement for proceeding with the termination of pregnancy. This position has been unambiguously stated in Section 3(4)(b) of the MTP Act, 1971.  The exceptions to this rule of consent have been laid down in Section 3(4)(a) of the Act. Section 3(4)(a) lays down that when the  pregnant woman is below eighteen years of age or is a ‘mentally ill’  person, the pregnancy can be terminated if the guardian of the  pregnant woman gives consent for the same. The only other exception is found in Section 5(1) of the MTP Act which permits a registered medical practitioner to proceed with a termination of pregnancy when he/she is of an opinion formed in good faith that the same is ‘immediately necessary to save the life of the pregnant woman.

The Court observed that in the present case, there is no opinion of any registered medical practitioner regarding risk to life due to continuance of pregnancy of the petitioner or her physical and mental health. Further in the present case, the pregnancy exceeds 24 weeks and as per the requirement of the statute, the medical opinion of not less than two medical
practitioners was not obtained and no  medical opinion regarding termination of pregnancy, if, immediately  necessary to save the life of the petitioner as per Section 5 of MTP  Act. Therefore MTP Act does not permit the termination of pregnancy of the petitioner.

The Court further stated that the victim is being forced to bear and care for the unwanted child is bound to severely impact her personality and womanhood. Thus the court observed that her request should have been acceded to over and above the right to life of the child yet to be born. Though this issue has, time and again, knocks at the judicial threshold it is still crying for an unperplexed solution by way of suitable amendment in the statute governing the field.

The Court feels that the Police officers could have acted more sensibly and, at the very least, guided them to approach District Legal Service Authority or Legal Services Units at Taluk Level or to any para legal volunteers. This would have, perhaps, helped the victim to get timely legal advice and may have saved her from suffering the forced delivery, imposed on her due to medico- legal compulsions.

The Court issued following directions keeping in mind rape victims and their unborn child:

1).The District Collector, Cuttack shall ensure that arrangements are made to provide proper diet, medical supervision and medicines as may be necessary, to the  victim throughout the remaining part of her journey of  pregnancy. When the time for delivery arrives, proper medical facilities be made available for a safe delivery of  the child.

2).The State Legal Services Authority shall ensure that the State Government shall pay an amount of Rs.10, 00,000/- (rupees ten lakhs only) as compensation to the victim. This amount shall be over and above the compensation amount, if any, the learned Trial Court may direct to be paid to the victim and/or her child at conclusion of the trial in the underlying proceedings.

The Court held that it does feel that her welfare is of, paramount consideration for this court. “However, as regards the legal position, the above discussion and the mandate of Section 3 of the MTP Act, in particular, lead only to one conclusion i.e., since the length of the pregnancy of the victim is over twenty-six weeks, this Court cannot permit its termination.”

[X v. State of Odisha, 2021 SCC OnLine Ori 1964, decided on 16-11-2021]


Arunima bose, Editorial Assistant has reported this brief.


Appearances:

For Petitioner: Mr Sarathi Jyoti Mohanty
For Opp. Parties: Mr L. Samantaray

Op EdsOP. ED.

Introduction

The Medical Termination of Pregnancy (Amendment) Bill, 2020[1] (“the Bill”) was passed by the Lok Sabha on 02.03.2020. It was thereafter introduced in the Rajya Sabha on 18.03.2020 and is yet to be passed by the Upper House. The Bill attempts to bring about certain changes in the present law relating to medical termination of pregnancy. Presently, the Medical Termination of Pregnancy Act, 1971[2] (“the MTP Act”) lays down the law and procedure with respect to medical termination of pregnancy and the Medical Termination of Pregnancy Rules, 2003[3] (“the Rules, 2003”) sets forth certain rules that must be adhered to by medical professionals and institutions that carry out medical termination of pregnancy. It is important to note that the term “abortion” has not been used in the MTP Act, the Bill or in the Rules, 2003; but is rather a term that is colloquially used.

Further, it is pertinent to note that the MTP Act acts as an exception to Section 312 of the  Penal Code, 1860[4] (“IPC”), which criminalises the act of “voluntarily causing a woman with child to miscarry” save for the purpose of it being carried out in good faith to save the life of the woman”. Therefore, while Section 312 IPC still remains in force, neither the MPT Act nor the Bill decriminalises medical termination of pregnancy but states certain permissible grounds under which a woman can undergo a medical termination and only under these specified and permissible categories/conditions can a woman undergo a termination, save by an order from the Court concerned.

Brief History of the MTP Act

The MTP Act was introduced in Parliament in 1970, was eventually passed in August 1971 and came into operation on 01.04.1972, after the Government framed rules for its implementation.  Since then, the Act has been amended once in 2002 and the new rules were framed in 2003. The Bill attempts to bring about a third amendment to the MTP Act.

Before the enactment of the MTP Act, about 5 million terminations were carried out per year in India out of which 3 million were illegal[5]. It is said that approximately one seventh of women who become pregnant in India every year resort to unsafe termination methods at the hands of inexperienced persons and “quacks” and/or paramedical personnel, like nurses, midwives who lacked the necessary experience and this resulted in risks of high morbidity and mortality amongst pregnant women and their children[6]. Further, during the period of 1960s, several countries started to enact laws to legalise medical termination of pregnancy. The MTP Act was largely modelled on the Abortion Act of 1967 which had been passed in the United Kingdom and the legislative intent, as opined by the  Supreme Court of India (“the Supreme Court”), was to provide a qualified “right to abortion” and the termination of pregnancy which has never been recognised as a normal recourse for expecting mothers.[7]

In order to lay down the law regarding medical termination of pregnancy, the Government of India set up the Shah Committee under Mr. Shantilal Shah to propose certain draft laws. This was also done at a time when countries across the world were attempting to liberalise termination laws and about 15 counties had already legalised medical termination of pregnancy. The Shah Committee in its report observed that “whatever may be the moral and ethical feelings that are proposed by society as a whole on the question of induced abortion, it is afact that a number of mothers are prepared to risk their lives by undergoing an illegal abortion rather than carrying that particular child to term”. The committee submitted a comprehensive report suggesting various situations justifying legal termination of pregnancy. It was of the view that this should be allowed not only for saving the life of the pregnant woman, but also to avoid grave injury to her physical or mental health. There was some debate surrounding the main prerogative of passing this legislation, as to whether it was enacted to combat the rising population growth or to ensure women have access to safe methods of termination, and giving them enhanced reproductive rights. Certain factions viewed the legislation, upon its enactment, as being a strategy for reducing population growth but the Shah Committee, specifically denied that this was its purpose[8].

A woman’s right to make reproductive choices is also a dimension of personal liberty as under Article 21 of the Constitution[9], as held by the Supreme Court in Suchita Srivastava v. Chandigarh Administration[10]. Herein, the Supreme Court held that it is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating and the crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected, which means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods.

In the aforementioned case, the Supreme Court also laid down the “best interests test” and “substituted judgment test” wherein the “best interests test” requires the Court to ascertain the course of action which would serve the best interests of the person in question and this decision should be guided by the interests of the victim alone and not those of the guardians or of society in general. The application of the “substituted judgment” test requires the Court to step into the shoes of a person who is considered to be mentally incapable and attempt to make the decision which the said person would have made, if she was competent to do so. Further, the Court made a distinction between those who are “mentally ill” or those who suffer from “mild mental retardation”. The MTP Act, as amended in 2002 substituted the word “lunatic” in Section 3(4)(a) which that of the expression “mentally ill person” and persons who are in a condition of “mental retardation” should ordinarily be treated differently from those who are found to be “mentally ill”. Therefore, while a guardian can make decisions on behalf of a “mentally ill person” as per Section 3(4)(a) of the MTP Act, the same cannot be done on behalf of a person who is in a condition of “mental retardation” and those who suffer from “mental retardation” are capable of making their own choices with respect to termination of  pregnancy.

Salient Features of the MTP Act

The MTP Act recognises the rights of the woman who wishes to undergo the termination and is surrounded and premised her consent, well-being and health. Therefore, the permissible grounds of medical termination depend upon the mental and physical health of the woman. This stance is different from that taken by certain countries such as United States of America, wherein certain States have premised their laws on the basis of the foetus, by recognising the rights and well-being of the foetus.

According to Section 3 of the MTP Act[11], if the duration of the pregnancy is of 12 weeks, it may be terminated on the basis of the opinion of one “registered medical practitioner” if continuance of the pregnancy would involve a risk to the life of the pregnant woman or would cause grave injury to her “physical or mental health” or if 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. If the length of the pregnancy is between 12 weeks -20 weeks, then the opinion of two registered medical practitioners is required in order to terminate the pregnancy. The basis of the opinion is the same as mentioned hereinabove.

The two Explanations to this section create as presumption that if the pregnancy is caused by rape or that the pregnancy was due to failure of any device or method used by “any married woman” or “her husband” for the purpose of limiting the number of children, then the “anguish” caused by such a pregnancy would be presumed to cause injury to the mental health of the woman. It is important to note that the grounds for termination, as enumerated in Section 3 of the MTP Act, barring Explanation II, is applicable to all women, regardless of their marital status and therefore the term “pregnant woman” or “pregnancy” is used, which does not indicate the marital status of the pregnant woman. In the event, that the termination is absolutely crucial to save the woman’s life, then the opinion of only one registered medical practitioner will suffice, regardless of the length of the pregnancy[12]. A registered medical practitioner is a doctor who specialises in the field of gynaecology and obstetrics.[13] Any other doctor does not come under the purview of a registered medical practitioner under the MTP Act.

In the event, that the pregnancy exceeds 20 weeks, then the woman has to approach the High Court concerned  or the Supreme Court by filing a writ petition under Article 226 or Article 32 of the Constitution of India respectively. Thereafter, the Court concerned directs that a medical board be set up, which is to prepare a report and submit it before the Court. Based on this report, the Court either allows or disallows the woman to undergo a medical termination.

In Meera Santosh Pal v. Union of India[14], woman who was in the 24th week of her pregnancy filed a petition before the Supreme Court with the plea to undergo a medical termination of pregnancy. The Supreme Court directed a medical board to be set up and the board was of the opinion that continuation of the pregnancy would not only result in grave injury to the physical and mental health of the woman but the foetus  would not be able to survive “extra-uterine life” due to abnormalities and therefore the Supreme Court directed that the woman can undergo a medical termination of pregnancy as per the provisions of the MTP Act.

Similarly, in  Sarmishtha Chakrabortty v. Union of India[15], a woman approached the Supreme Court to seek permission to undergo a medical termination. The Supreme Court directed that a medical board be set up and the medical board was of the opinion that it was a case for termination of pregnancy as the women was at the threat of severe mental injury if the pregnancy is continued and if the child were born alive, would need complex cardiac corrective surgery stage by stage after birth and there is high mortality and morbidity at every step of this staged surgeries. Therefore, the Supreme Court granted the prayers sought for in the petition and permitted the woman to undergo a medical termination of pregnancy.

Further, in  X v. Union of India[16], the Supreme Court held, on the basis of a report submitted by the medical board directed to be constituted, that though the current pregnancy of the petitioner was about 24 weeks but the life of the foetus outside the womb was endangered and therefore the Supreme Court permitted the woman to undergo a medical termination of pregnancy as per the provisions of the MTP Act.

However, in certain cases, the Supreme Court has rejected a woman’s plea to undergo medical termination. In Savita Sachin Patil v. Union of India[17], a woman in her 26th week of pregnancy approached the Supreme Court in order to seek permission to undergo a medical termination. The Supreme Court directed that a medical board be set up and the medical board submitted a report which opined that there is no physical risk to the mother of continuation or termination of pregnancy and if the baby is born with “Trisomy 21”, it is “likely” to have mental and physical challenges. The Supreme Court held that since the medical report clearly does not observe that this particular foetus will have severe mental and physical challenges and simply states that it is “likely” to have these challenges and also since there is no danger to the life of the woman, the prayer to undergo medical termination was declined by the Supreme Court.

Similarly, in  Sheetal Shankar Salvi v. Union of India[18], the Supreme Court, on the basis of the report of the medical board, declined to grant permission to a woman to undergo medical termination on the grounds that since it has not been possible for the  Medical Board to determine the period of time for which the baby is likely to survive and since there is no danger to the mother’s life and that there was the likelihood that “the baby may be born alive and may survive for variable period of time”.

The consent of the woman is of paramount importance and no termination can take place without the consent of the woman[19]. However, in the event that a minor woman i.e. who is under the age of 18 years old or one who may be a major i.e. 18 years old or above but suffers from mental illness is pregnant and wishes to undergo a medical termination, the termination shall take place only upon the consent given by her guardian in the form of writing[20].

Further, women who undergo a medical termination of pregnancy are entitled to maternity benefits and maternity leave for a period of 6 weeks following the date of the termination under the Maternity Benefit Act, 1961[21].

Proposed Amendments by the Bill

The Bill seeks to carry out certain amendments to the MTP Act, some of which are welcome changes. One of the key amendment features is increasing the permissible upper limit of undergoing a termination, without an order from the court concerned, from 20 weeks to 24 weeks of the length of the pregnancy. In the MTP Act, 20 weeks is the upper limit to undergo a termination by seeking the opinion from two registered medical practitioners. As stated above, presently, if the length of the pregnancy is over 20 weeks and a woman wishes to undergo a termination, she will have to file a writ petition before the High Court concerned or the Supreme Court.

Further, the Bill proposes that, if a woman who is pregnant for a period of 20 weeks, wishes to undergo a termination, she will need to seek an opinion from one registered medical practitioner and such a proposed amendment is a welcome change as it reduced the mental, physical and financial burden on women. Further, the Bill proposes that if the length of the pregnancy is between 20 weeks to 24 weeks, then she will need an opinion from two registered medical practitioners before undergoing a termination. However, the Bill uses the term “in case of such category of woman as may be prescribed by rules made under this Act,” and therefore, only women who fall into the category as prescribed by the rules can avail this option. However, termination in this case is also permissible for “such category of woman as may be prescribed by rules made under this Act”. The Bill does not state any such category and this ambiguity/caveat can be problematic as the Rules and not the Act will determine the category of women who can undergo a termination in such an instance. In order to save the life of a woman, only the opinion of one registered medical practitioner is necessary, regardless of the length of the pregnancy. This provision exists presently in the MTP Act as well.

The Bill proposes to set up a “medical board” within the scope of the Act itself. The Bill proposes that if the length of the pregnancy is 24 weeks or more, then a medical termination is permissible only if the medical board has diagnosed that a case of “substantial foetal abnormality exists” and medical termination is necessary. It is pertinent to note that in such an instance, a medical termination will not be permissible on any other grounds but solely on the ground that the fetus has certain abnormalities. Therefore, a woman does not need to approach the Supreme Court or High Court to seek permission for a termination of pregnancy that exceeds 24 weeks in the event that there exists foetal abnormality. However, a woman, would still need to file a writ petition before the  Court concerned if the length of the pregnancy exceeds 24 weeks and she wishes to undergo a termination for a reason other than the existence of foetal abnormality. Presently, medical boards are not statutory creations but are created by various Courts which entertain writ petitions filed by women seeking permission to undergo a termination and on the basis of the report of the medical board, amongst other factors, the Court allows or disallows a medical termination.

Further, the Bill proposes to amend the Explanation to Section 3 (2) by amending the term “married woman” to replace it with “any woman” and by amending the term “husband” to replace it with the term “partner”. This proposed amendment can be regarded as being progressive and liberal as it ends the statutory discrimination against unmarried women and includes all women and their partners, notwithstanding the marital status between them, to fall under the presumptive exception created by the section. Further, this proposed amendment also recognises the changes in society and does not restrict relationships solely to marital ones.

Conclusion

The MTP Act is a progressive legislation, which has given women in India a semblance of reproductive rights and autonomy and this sentiment has been echoed by the Supreme Court through various judgments. At a time when certain countries are attempting to repeal medical termination of pregnancy laws, India has managed to retain and constantly develop the law surrounding medical termination of pregnancy. The Bill attempts to amend and introduce certain provisions which can be beneficial. Despite certain limitations and lacunae, wherein it is hoped that these lacunae are rectified by judicial pronouncements, the Bill can be viewed as an attempt to liberalise and expand the existing medical termination of pregnancy laws.


*The author is an Advocate who practices in New Delhi. She thanks Ms. Nandita Rao for providing some valuable inputs.

[1] Medical Termination of Pregnancy (Amendment) Bill, 2020 

[2] Medical Termination of Pregnancy Act, 1971

[3] Medical Termination of Pregnancy Rules, 2003

[4]Section 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.

[5] N. R. Madhava Menon, “Population Policy, Law Enforcement and the Liberalisation of Abortion : A Socio Legal Inquiry into the Implementation of the Abortion Law in India”, 16 JILI 626 at 632- 33 (1974).

[6]Asit K. Bose, “Abortion in India : A Legal Study”, 16 JIL1 535 (1974).

[7]Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1

[8]Siddhivinayak S. Hirve, “Abortion Law, Policy and Services in India: A Critical Review”, Abortion Law, Policy and Practice in Transition, Vol. 12 Issue Sup 24 (2004).

[9]Article 21: Protection of life and personal liberty– No person shall be deprived of his life or personal liberty except according to procedure established by law.

[10] (2009) 9 SCC 1

[11]Section 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 1.-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 2.-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.

[12]Section 5(1), MTP Act

[13] Section 2(d), MTP Act

[14] (2017) 3 SCC 462

[15](2018) 13 SCC 339

[16](2017) 3 SCC 458

[17](2017) 13 SCC 436

[18](2018) 11 SCC 606

[19]Section 3(4)(b), MTP Act

[20]Section 3(4)(a), MTP Act

[21]Section 9, Maternity Benefit Act, 1961: Leave for miscarriage, etc.—In case of miscarriage or medical termination of pregnancy, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or, as the case may be, her medical termination of pregnancy.

Case BriefsHigh Courts

Orissa High Court: Biswanath Rath J., allowed the petition in part and laid down comprehensive guidelines for the state to follow in like cases and interpreted the various provisions of The Medical Termination of Pregnancy Act, 1971 i.e. MTP Act, 1971; The Medical Termination of Pregnancy Rules, 2003, i.e. MTP Rules, 2003 and The Medical Termination of Pregnancy Regulations, 2003 i.e. MTP Regulations, 2003 (hereinafter referred) keeping in mind the intent of the legislation.

The background of the case is that a wife of a labourer found unnatural behaviour in her physically disabled and mentally retarded daughter and on close scrutiny and soliciting came to know that she has been raped pursuant to which an FIR has been registered against accused Sili Manjhi (as named by the victim daughter) under Sections 376(2)(1), 294 and 506 Penal Code, 1860. The victim on being medically tested by medical officers at the instance of police officials was not only found to be physically handicapped and mentally retarded but also pregnant of almost four months. The instant writ petition has been filed by a desperate mother seeking permission for terminating the pregnancy of the victim daughter who is unable to take care of herself properly due to mental and physical incapacity under the provisions of MTP Act, 1971; MTP Rules, 2003 and MTP Regulations, 2003.

Counsel for the petitioner S.C. Puspalaka, A.K. Tarai, T. Priyadarshini and T. Barik prayed to grant necessary direction to the competent authority as deem fit and proper and also for granting appropriate relief not only to the victim but also to all such who have also become victim in the process.

Counsel for the State submitted that as per the report dated 13-08-2020 given by a committee formed in terms of Regulation 3 of the MTP Regulations, 2003 it is found that the victim girl is mentally retarded and that she was pregnant for four months though at some places it is mentioned as 16 weeks. Due to conflict in the duration of pregnancy as per medical examination, a second report was conducted. According to the second report dated 05-09-2020, the pregnancy period was 24 weeks. Due to such a huge difference in results in the two reports in just about 23 days, a third examination was suggested to arrive at a just conclusion.

The third and final report suggested no possibility of termination of pregnancy as termination will endanger the life of mother.

After the final report, counsel for petitioner submitted that petitioner has a disastrous financial condition and cannot take care of both victim and her child involved unless she is provided with appropriate financial and medical support.

After perusing Sections 3, 4 & 5 of the MTP Act, 1971, Rule 5 of the MTP Rules, 2003 and Regulation 3 of MTP Regulation, 2003 it is to be stated that termination of pregnancy can be allowed, if the length of pregnancy exceeds 12 weeks but does not exceed 20 weeks but subject to however under the opinion of the two registered Medical practitioners on the issues prescribed therein and also taking care of the provisions at the Explanation ‘I’ therein. After perusal of the “Statement of Objects and Reasons” of MTP Act, 1971which states as under

 “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 conceived (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.”

 Hence it is amply clear that the legislative intent of the Act is to provide for termination of pregnancies in such cases on humanitarian grounds subject to the opinion of the committee of doctors. The Court also expressed its dismay and agony towards the public authorities due to negligence however unintentional and the resultant default in the two reports due to which delay happened, the cost of which will be borne by the victim.

The judgments relied on were Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1 and Z v. State of Bihar, (2018) 11 SCC 572 excerpts of which are stated hereunder:

The legislative intention of the 1971 Act and the decision in Suchita Srivastava prominentaly emphasize on personal autonomy of a pregnant woman to terminate the pregnancy in terms of Section 3 of the Act. Recently, Parliament has passed the Mental Healthcare Act, 2017 which has received the assent of the President on 7-4-2017.

 “ It has to be borne in mind that element of time is extremely significant in a case of pregnancy as every day matters and, therefore, the hospitals should be absolutely careful and treating physicians should be well advised to conduct themselves with accentuated sensitivity so that the rights of a woman are not hindered. The fundamental consent relating to bodily integrity, personal autonomy and sovereignty over her body have to be given requisite respect while taking the decision and the concept of consent by a guardian in the case of major should not be over-emphasised.”

Hence as per the medical reports submitted by the doctors, and the submissions made post that on behalf of the petitioners regarding taking care of the victim and its child, if financial help provided, the Court declining the relief of termination of pregnancy under the compelling reasons issued necessary direction to the State Government as a matter of future guideline involving case of this nature.

 Specific Guidelines issued for the case at hand (verbatim reproduced)

(A) Considering that the victim is suffering on account of rape committed on her and the suffering for which the authorities of the State are responsible, this Court directs the State of Odisha to pay as an immediate measure, by way of exgratia grant, a sum of Rs 5,00,000 (Rupees Five lakh) within seven days of receipt of copy of the judgment, to the victim to be kept in long term Fixed Deposit in any Nationalized Bank in the name of victim to be renewed from time to time with operation of such account by the mother of the victim. Annual interest on such Fixed Deposit will be credited to the passbook so maintained with authorization to the mother of the victim herein, to utilize the same towards her daughter’s expenditure till survival of the victim, whereafter the child will be entitled to this amount.

(B) Similarly a further sum of Rs 3,00,000 (Rupees Three lakh) in case of male child and in the event the victim gives birth to a girl child then looking to the suffering of the girl child throughout her life, for the peculiar circumstance involved herein, a sum of Rs.5,00,000/- (Rupees Five lakh) to at least make sure that the girl child does not suffer throughout her life, amount as appropriate, shall also be released by way of ex-gratia grant in favour of child within at least ten days of such birth. Here also the amount will be kept in Fixed Deposit in any nationalized Bank by opening a Savings Bank Account in the name of the child. This Account will also be run in the name of minor child to be operated by the maternal Grandmother with scope for renewal of the Fixed Deposit from time to time at least till the child becomes major. Interest so yielded through the F.D. shall be accounted to the SB Account Passbook in the name of minor and to be operated by maternal grandmother only and utilized for the purpose of meeting expenditure on child. The child will ultimately be the owner of such amount once he/she becomes major.

(C) Amount granted by way of ex gratia under Item Nos.1 and 2 shall however be in addition to grant of any payment to the victim and the child on application of The Victim Compensation Scheme under the provisions of Section 357-A of the Code of Criminal Procedure decided by trial court or any other authority competent to do so.

(D) Considering the mental condition of the victim and financial condition of the family, utmost care of the victim is to be taken in continuation of her pregnancy. The best medical facility be made available so as to ensure proper care and supervision during the period of pregnancy as well as postnatal care with the supervision of Doctors in the S.C.B Medical College & Hospital, Cuttack with assistance of team of Doctors at the District Medical Level. Keeping in view the report dated 12.09.2020 the delivery of the victim shall take place only in the S.C.B. Medical College & Hospital, Cuttack.

(E) Looking to the mental retardness along with physical handicapness in the victim, there may be periodical check-up of the victim by a Psychiatric Expert and other related doctors required on requisition of the CDMO. The Superintendent, SCB Medical College and Hospital, Cuttack will ensure such assistance.

(F) The entire transport, medical and medicinal expenses including accommodation of the victim and her mother, if necessary during treatment, shall be the responsibility of the District Administration.

(G) The entire education of the child will be the responsibility of the State.

(H) In the event any grievance arises involving providing any other assistance to the victim and/or the child, it shall be open to the petitioner to first approach the Collector of the District on the basis of direction herein and in case of failure in responding to the genuine asking, it will be open to the victim’s mother and child on attaining his/her majority to approach the High Court of Orissa in filing appropriate application.

(I) Looking to the condition of victim, this Court also observes, the child to be born shall be given proper treatment and nutrition by the State and if any medical aid is necessary it shall also be provided to him/her by the State at least till the child is sufficiently grown up.

(J) Looking to the family of the victim runs on the sole income of the husband of the petitioner being a labourer, to see that the petitioner while maintaining her family will also be able to look after the victim and in future the child to take birth, this Court directs the District Collector to depute a competent officer to the residence of the petitioner to assess the capacity of subsistence in her and based on detailed assessment of their survivability, the Collector shall take decision on providing further assistance through any of the Central Scheme available for the purpose, if any, by completing the entire exercise within four weeks from the date of judgment.

(K) To protect the future of child and to see there is no mismanagement of fund provided both to the victim and the child by direction of this Court, this Court further directs that the Secretary, District Legal Services Authority shall have supervision on the spending by the mother against the account involving both the victim as well as the child so long as the victim survives and the child becomes major. The Secretary is also authorized, in the event he finds any irregularity in the spending of funds or mismanagement of funds involved by the mother, the petitioner herein, involving both the accounts, may seek leave of the High Court for any other mode of operation.

General Guidelines issued (verbatim reproduced)

(i) Once an incident of rape; be it on minor, minor and mentally retarded, minor and physically handicapped, unmarried major, married major, mentally retarded major and physically handicapped major is made to Police within eight weeks period, the Police and the C.D.M.O will take consent of the guardian-mother in case of minor, minor and mentally retarded, minor and physically handicapped as to whether they are interested to continue with pregnancy or interested in termination? In case of major and physically handicapped, consent of such victim and in case major but mentally retarded, consent of mother of such victim shall be taken within same time as to whether the victim should continue with pregnancy or interested in termination. This Court here clarifies, in case there is no interest shown for continuing with pregnancy, immediately after the 1st report of Committee the local Chief District Medical Officer should undertake the exercise of termination but in terms of the Medical Termination of Pregnancy Act, 1971. In case interest for termination is not shown then-Police authority along with Chief District Medical Officer is to take care of both mother and child in womb involving pre-birth care and postbirth care for at least till a period of one year after birth takes place. Further, in case of an unmarried major and married major, procedure indicated hereinabove shall also be followed but however with consent of major girl. In case of termination of pregnancy, the C.D.M.O shall take DNA sample of child to ensure its handing over to Investigating Agency, so as to be forwarded to the concerned Court for requirement, if any, there in the criminal trial.

(ii) To maintain secrecy of her pregnancy and termination, the State will ensure, if necessary, to handover such mother to remain in custody of Woman Rehabilitation Centre until her delivery and convalescence.

(iii) In case victim and her mother wish to live in their own residence, they may do so but will be provided all medical help by the State Authority at the cost of the State.

(iv) In required cases, the State will also permit the girl’s mother to either live with her or regular visit to give moral and emotional support and all medical support will be extended by the State through such Institution.

(v) In case of involvement of child through physically handicapped and/or mentally retarded woman subject to medical assessment that such mother is unable to take care of the child born provided there is no elder member coming forward to take care of such child, keeping in view the welfare of the child he or she may be taken care under the Juvenile Justice care mechanism involving agency engaged for such purpose and for about at least 12 months such child will not be given in adoption. This is, however, if there is nobody in the family to take care of such child in course of time.

(vi) In the entire process, all concerned will ensure that secrecy of pregnancy, anonymity of the petitioner and the child to be born is maintained.

vii. In cases it shall equally be the responsibility of the applicant society to ensure that the child does not know about his/her mother and of course about the incident.

viii. There should be immediate grant of exgratia-cum compensation subject to the further grant of victim compensation involving the criminal trial.

(ix) Considering such incidence occurring for failure of Law and Order Authority in case of requirement of high level treatment of rape victim or the child born in such process, the victim and/or the child will be provided the highest level of treatment at the cost of the State including the attendants journey, accommodation and fooding cost, if any.

(x) Report of the Doctor or team of Doctor, as the case may be, obtained with all promptitude and any delay at the level of State Authority shall lead to fixation of accountability and responsibility against all such involved.

(xi) When a pregnant mother is required for examination by a Medical Board for the purpose of termination, it must include apart from Obstetrics and Gynecology also (i) Paediatrics, (ii) Psychiatry/Psyochology, (iii) Radiology/Sonography, (iv) from field of Medicine with inclusion of tests involving foetus also Mental Health Care Act, 2017.

(xii) Constitution and establishment as expeditiously as possible Medical Boards under the provisions of MTP Act, 1971, in each District to fasten examination and effective action involving such cases.

(xiii). District Level Committees to ensure that there are sufficient approved places in terms of Section 4(b) of the MTP Act, 1971 in each districts of the State of Odisha. Chief District Medical Officers involved undertake periodic instruction of such approved places following rule 6 of the MTP Rules, 2003 and take immediate measure to remove difficulties if any. State in its appropriate Departments will have the obligation to co-operate in such matters.

(xiv) If a woman reports with a pregnancy resulting from an assault, she is to be given the report of undergoing an abortion and protocols for the Medical Termination of Pregnancy Act are to be followed. Further with preservation of products of conception (POC) be sent to proper custody as evidence and other required purpose under the direction of the Court of competent authority including DNA Test, if any.

(xv) There should also be strict following of User Handbook on Protection of Children from Sexual Offences Act, 2012.

The copy of the judgment was also directed to be supplied to Secretary to Government in Health Department, Secretary to Government in Women & Child Care Department, Secretary to Government in Home Department, Chairperson of the State Women Commission, Director, Medical Education and Technology and Superintendents of all the three Premier Medical College & Hospital of the State and also to all the District Judges, who in turn shall bring the same to the notice of the Sessions Court(s) dealing with sexual offences, the Presiding Officer, POCSO Court, the Principal Magistrate of Juvenile Justice Board under its jurisdiction and to the Member Secretary of State Legal Services Authority for bringing it to the notice of the Chairman and the Secretary of District Legal Services Authority for their cooperation and coordination and its effective implementation.

In view of the above, the petition allowed in part and disposed off.[Runa Majhi v. State of Odisha, WP (C) No. 21947 of 2020, decided on 14-09-2020 ]


Arunima Bose, Editorial Assistant has put this story together