Impacting a Woman’s Freedom to Reproductive Choices

Why in News?

• Recently in a case, the Supreme Court of India denied a woman's request to terminate her 26-week-long pregnancy.
• A bench led by Chief Justice of India (CJI) D.Y. Chandrachud ruled that the woman's situation did not align with the provisions of the Medical Termination of Pregnancy (MTP) Act.

What is the Law on Abortion in India?

• The Medical Termination of Pregnancy (MTP) Act, 1971:
• It was introduced to liberalise access to abortion since the restrictive criminal provision (in the IPC) was leading to women using unsafe and dangerous methods for termination of pregnancy.
• The Act allowed termination of pregnancy by a medical practitioner in two stages.
  • For termination of pregnancy up to 12 weeks from conception, the opinion of one doctor was required.
  • For pregnancies between 12 and 20 weeks old, the opinion of two doctors was required.
  • In the second case, the doctors must determine if the continuation of the pregnancy would involve a risk to the pregnant woman's life or the child would suffer physical or mental abnormalities.
• The MTP (Amendment) Act, 2021:
• The law allowed for a termination under the opinion of one doctor for pregnancies up to 20 weeks. 
• For pregnancies between 20 and 24 weeks, the amended law requires the opinion of two doctors.
  • The government has issued the new Medical Termination of Pregnancy (Amendment) Rules, 2021, which define the situations that define eligibility criteria for termination of pregnancy up to 24 weeks.
• The amended act and the MTP (Amendment) Rules, 2021, specified seven categories (Survivors of sexual assault or rape or incest; Minors; etc) of women who would be eligible for seeking termination of pregnancy, for a period of up to 24 weeks. 
• After 24 weeks, a medical board must be set up in “approved facilities”, which may “allow or deny termination of pregnancy” only if there is substantial foetal abnormality.

The Petition Before the SC in the Recent Case (X vs The Union of India)

• In her first argument, the woman contended that she was experiencing post-partum depression, and her mental state made it difficult for her to raise another child.
• Secondly, she asserted that her husband was the sole breadwinner of the family, and they were financially incapable of providing for a third child. 

The Supreme Court’s Ruling

• The First Judgment (In Favour of the Petitioner)
  • At the first instance, Court, on examining a report submitted by a medical board constituted by AIIMS ruled in her favour.
  • A Bench comprising Justices Hima Kohli and B.V. Nagarathna held that to allow the pregnancy to continue, could have a serious bearing on the petitioner’s mental health.
• The Second Ruling (Disagreement Between the Judges)
  • The Union government returned to the court the next day, indicating that a member of the medical board had submitted a request for clarification regarding whether the termination could proceed, taking into consideration the viable status of the foetus.
  • The two judges found themselves in disagreement with each other.
  • Justice Kohli expressed that her judicial conscience does not permit her to authorise an abortion.
  • In contrast, Justice Nagarathna asserted that the petitioner's choice must be honoured.
    • She ruled that the woman's decision was of utmost importance, emphasising her right to reproductive health, which encompassed the right to have an abortion.
    • Furthermore, she stated that a foetus is dependent on the mother and cannot be recognised as an individual personality separate from its mother, as its very existence is owed to the mother.
• The Final Judgement Led by a Bench of CJI
  • This impasse between the two judges led to the constitution of a separate Bench presided over by the CJI.
  • A new report from the medical board confirmed that the foetus was viable and had no abnormalities, and that the medication that the petitioner was on would not in any way endanger the pregnancy.
  • Given that neither of the exemptions available under the MTP Act were met, the Court now ruled that its earlier order had to be recalled.

Criticism of the Supreme Court’s Judgement

• The Ruling Limits Women’s Right to Choose Without Recognising Foetus’ Rights
  • When a foetus becomes viable (able to survive outside the mother's uterus), a woman's right to choose abortion is limited unless specific conditions in the MTP Act are met.
  • The judgment does not clearly grant rights to the unborn but affects a woman's right to choose based on viability.
• Ignored Central Questions
  • The judgment did not address critical questions whether a foetus has moral status, legal standing, or constitutional rights.
  • Without deliberating on these questions, the judgment prioritised the foetus' rights over the pregnant woman's privacy and dignity.
• The Court Failed to Examine the MTP Act
  • The court failed to check if the MTP Act is just a law that allows something or is this law helping people exercise a basic right, or does it give people certain rights on its own?
  • If these questions were asked and answered, the court might have thought about whether a woman should be allowed to end her pregnancy even if it is not exactly according to the law.
  • If the right to make choices about having children is important and comes from the Constitution, the court should not have a problem making decisions that go beyond what the MTP Act says.
• Contradicts SC’s Puttaswamy Judgement
  • Last year, in X vs The Govt. of Delhi the SC, relying on its 9-judge Bench ruling in Puttaswamy, held that people have a right to privacy and dignity, and women have the right to make choices about their bodies and reproductive health.
  • Justice Chandrachud wrote that women can decide to have an abortion if it is necessary for their mental or physical health, and the government should not interfere too much in these decisions.
  • But now, this decision seems to go against what the previous one said. It does not seem to fully support a woman's right to choose.
  • Therefore, the MTP Act should be seen as something that helps people exercise their fundamental rights, not as something that restricts those rights.
  • So, if the MTP Act does not fully protect these rights, the court should issue new directions to make sure women can make their own choices. But the recent court decision does not seem to do that.
• The Ruling’s Implication that Foetuses Have Rights Under the Constitution is Wrong
  • Traditionally, India’s laws and constitution have focused on protecting the rights of people (likeunder Articles 14 and 21).
  • They have not considered foetuses as separate persons with their own rights.Even the existing law on abortion, the MTP Act, does not treat foetuses as separate persons.

Conclusion

• As justice Nagarathna stated that India’s constitution views a foetus as reliant on the mother, treating it as a separate individual would mean giving it special rights that no one else has under the Constitution.
• This interpretation would erase the legal principles that prioritise a woman's freedom to make decisions about her reproductive health, which are protected by Articles 14 and 21 of the Constitution.

Q1) What are the principles of MTP Act?

Justice Pardiwala ruled that all women, irrespective of their marital status, are entitled to a safe and legal abortion up to 24 weeks of their pregnancy as the MTP Act recognises the reproductive autonomy of every pregnant woman to choose medical intervention to terminate her pregnancy.

Q2) What is the meaning of women’s right to reproductive choices?

The right to reproductive choice means that women have a right to choose whether or not to reproduce, including the right to decide whether to carry or terminate an unwanted pregnancy and the right to choose their preferred method of family planning and contraception.

Source: The Hindu