Apex Court allows abortion for ailing foetus 

Context

Supreme Court upholds the right to chose to abort her 20-week- old foetus will severe abnormalities. The law, however does not permit abortion if the foetus is over 20 weeks old.

Details about the case

• The bench observed that, “the right of the woman to have a reproductive choice is a part of personal liberty.”
• Around 26 million births that occur in India every year, approximately 2-3 per cent of the foetuses had severe congenital or chromosomal abnormality.
• Earlier, the court wanted to stretch the law on abortion that would allow termination of pregnancy beyond 20 weeks if the foetus suffered from severe Many suffered Intrauterine Foetal Death (IUFD).
• It is normally possible to detect certain abnormalities before 20 weeks, but some could be detected only after that period.
• The abortion will be conducted at a Kolkata hospital.

Indian Laws on Abortion

• Indian law permits abortion, if the continuance of pregnancy would involve a risk to the life of the pregnant woman or grave injury to her physical or mental health.
• Abortion is severely condemned in Vedic, Upanishadic, the laterpuranic D(old) and smriti literature.
• The Supreme Court has said that the right to privacy is implicit in Article 21 of the Constitution and a right to abortion can be read from this right.

 Medical Termination of Pregnancy (MTP) Bill

Who gets the final say?

• It is submitted that a decision as to abortion may be entirely left with woman provided she is sane and attained majority.
• Only in cases where an abortion may affect her life, her freedom may be curtailed. All other restrictions on the right to abortion are unwelcome.
• The law thus is unreasonable and could well be found to be violative of the principles of equality provided under Article 14 of the Constitution.
• Finally, it may be noted that the M.T.P. Act does not protect the unborn child. Any indirect protection it gains under the Act is only a by-product resulting from the protection of the woman.
• The rights provided as well as the restrictions imposed under the statute show that the very purpose of the state is to protect a living woman from dangers which may arise during an abortion process. It is the protection to the mother that protects the unborn.

Knowledge Base: 

What are Human Rights?

• Human Rights are those rights, which should be accessible to every individual without any discrimination of any kind.
• Acknowledgement of the innate dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom.
• The most important right of a Human is the right to life.
• It is the supreme human right from which no derogation is permitted. It is inalienable.
• Article 6(1) of the International Covenant on Civil and Political Rights prohibit the arbitrary deprivation of life.

Issue of Right to Abortion

• But there will always be some debatable issues related to this supreme right. One such issue is the question of Right to abortion.
• Among other rights of women, it is understood that every mother has a right to abortion, it is a universal right.
• But the dilemma hangs in when the rights of the mother needs to be balanced with the rights of the unborn.
• The right to abortion is strongly opposed by any society and termed as murder of the foetus.
• Post the famous decision of Roe Vs Wade by the US Supreme Court, the right has been legally sanctioned.

What is abortion?

• An abortion is the removal or expulsion of an embryo or fetus from the uterus, resulting in, or caused by, its death.
• It can happen spontaneously as a miscarriage, or be artificially induced through chemical, surgical or other means.
• Frequently, “abortion” refers to an induced procedure at any point in the pregnancy; medically, it is defined as a miscarriage or induced termination before twenty weeks’ gestation, which is considered nonviable.

What gives a woman the right to abort?

• If the continuation of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated.
• If the termination is needed to avert grave permanent injury to the physical or mental health of the pregnant woman.
• If the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman.
• If the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, or injury to the physical or mental health of any existing child of the family of the pregnant woman.
• If there is any significant risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
• If in emergency, certified by the operation practitioner as immediately necessary to save the life of the pregnant woman or to prevent grave permanent injury to the physical or mental health of the pregnant woman.

Cases in regard to MTP

D. Rajeshwari Vs State of Tamil Nadu and others

• An unmarried girl of 18 years who is praying for issue of a direction to terminate the pregnancy of the child in her womb, on the ground that bearing the unwanted pregnancy of the child of three months made her to become mentally ill and the continuance of pregnancy has triggered excessive torment in her mind, which would result in a grave injury to her mental health, since the pregnancy was caused by rape.
• The Court granted the permission to terminate the pregnancy.

Dr. Nisha Malviya and Anr. Vs State of MP, 2003

• The accused had committed rape on minor girl aged about 12 years and made her pregnant.
• The allegations are that two other co-accused took this girl, and they terminated her pregnancy.
• So the charge on them is firstly causing miscarriage without consent of girl.
• The Court held all the three accused guilty of termination of pregnancy which was not consented by the mother or the girl.

Murari Mohan KoleyVs State of M.P

• A woman needed to have an abortion on the ground that she has a 6 months old daughter.
• She approached the petitioner for an abortion. And the petitioner agreed to it for a consideration.
• But somehow the condition of the woman worsened in the hospital and she was shifted to another hospital. But it resulted in her death. The abortion was not done.
• The petitioner who was a listed medical practitioner had to establish that his action was done in good faith, so that he can get exemption from any criminal liability under section 3 of the MTP Act, 1971.

Shri Bhagwan Katariya and Others Vs State of M.P, 2000

• The woman was married to a man named Navneet. Applicants are younger brothers of said Navneet while Bhagwan Katariya was the father of said Navneet.
• After the complainant conceived pregnancy, the husband and the other family members took an exception to it, took her for abortion and without her consent got the abortion done.
• The Court opined that if we refer Section 3 of the Medical Termination of Pregnancy Act, 1971, a doctor is entitled to terminate the pregnancy under particular circumstances and if the pregnancy was terminated in accordance with the provisions of law, it must be presumed that without the consent of the woman it could not be done.

Conclusion 

It is the right of a woman to have a reproductive choice. It is a part of personal liberty. The Bench therefore took note of the stress suffered by the petitioner.