Supreme Court admits petition to decriminalise abortion

The Supreme Court on Monday admitted a writ petition seeking to decriminalise abortion and allowing women the right to exercise their reproductive choice.

“The right to exercise reproductive choice is the right to choose whether to conceive and carry pregnancy to its full term or to terminate is it at the core of one’s privacy, dignity, personal autonomy, bodily integrity, self determination and right to health recognised by Article 21 of the Constitution,” the petition filed by Swati Agarwal, Garima Sekseria and Prachi Vats said.

A Bench led by Chief Justice of India Ranjan Gogoi issued notice to the Centre on their contention that several provisions of the 48-year-old Medical Termination of Pregnancy Act of 1971 imposes severe restrictions on the reproductive choice of a woman, her personal liberty and bodily autonomy. The court asked the government to respond to the petition.

‘Undue burden’

For example, the law largely allows a woman to abort only if continuance of the pregnancy, according to a medical practitioner, involves a risk to her life; grave physical or mental injury; or risk of serious foetal abnormalities. This is the case even in case the pregnancy is less than 12 weeks old. The first trimester of pregnancy entails lesser risk for abortion. Besides, the State has no legitimate interest for interfering in the right of reproductive choice of a woman, curtailing her right to terminate her pregnancy.

“The restriction puts an undue burden on the exercise of free reproductive choice and renders it meaningless. This provision in substance makes right to terminate pregnancy an exception, which is otherwise recognised as an important facet of right to life, human dignity and self determination,” the petition said.

‘Excessive, harsh’

The petition said abortion, as per the 1971 Act, is not permissible after 20 weeks of pregnancy. This is excessive and harsh. The Medical Termination of Pregnancy (Amendment) Bill 2014 and Medical Termination of Pregnancy (Amendment) Bill 2017 have proposed to enhance the cap for termination of pregnancy to 24 weeks.

Several genuine cases had come up where foetuses with serious risk of abnormalities causing grave risk to the physical and mental health of the mother were noticed after the 20-week period. “As a result, many women were forced to move the Supreme Court for permission to end their pregnancy. This had led to a lot of mental and financial hardship to pregnant women,” the petition recounted.

Single women unequal

The petition said the law adversely affects the sexual autonomy of single women. While it protects married woman by allowing them to terminate an “unplanned and unwanted pregnancy, the same is not extended to single women”.

“There is no rationale for not affording the same protection to an unmarried woman. On the contrary an unwanted and unplanned pregnancy will invariably in the case of an unmarried woman ensue more grave consequences. The provision treats equals unequally,” the petition said.

Studies suggest that unmarried sexually active women face considerable obstacles to contraceptive use and abortion facilities, it said.

Minors, mentally ill

The petition pointed out how the Act does not allow abortion of pregnancy in the case of minors or mentally ill persons without the consent of the guardian.

“As a consequence the guardian enjoys complete autonomy over such persons. An unwilling minor or mentally ill person will be compelled to carry the pregnancy to the full term and face all the consequences and challenges which come along with the fact of being a mother owing to refusal of consent of the guardian,” the petition said.

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Printable version | Nov 23, 2020 6:43:28 PM |

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