India’s abortion laws must change

[dropcap]O[/dropcap]VER the last couple of months, the Bombay High Court and the Madras High Court have passed important judgements that should hopefully reduce the trauma that survivors of rape have to undergo to terminate their pregnancy, especially beyond the period of 20 weeks as stipulated under the Medical Terminated Pregnancy (MTP) Act, 1971.

In a batch of petitions filed before the Bombay High Court seeking leave for termination of pregnancy after the twentieth week, a division bench of the court chose to examine in detail important questions of law that arise when a pregnancy is sought to be terminated after the 20-week period. In XYZ v. Union of India [W.P. 10835 of 2018], it was held that Section 5 of the MTP Act which states a pregnancy can be terminated beyond the 20-week period by a medical practitioner in cases of likelihood of danger to the life of the mother, the word 'life' should be interpreted purposively in terms of the scheme of Article 21 of the Constitution of India, providing due consideration to both the physical discomfort and mental trauma that may be caused by an unwanted/forced pregnancy.

On the other end of the spectrum, the Madras High Court was required to interfere in a case where the petitioner who was a rape survivor and wanted to terminate her pregnancy within the threshold limit under the MTP Act. However, due to inaction by the concerned authorities, the Madras High Court held that in no circumstances should a survivor of rape be forced to approach court to terminate a pregnancy within the 20-week period.

Giving Section 5 of the MTP Act a purposive interpretation

The question that the Court asked itself was, "….Is the expression 'to save the life of the pregnant woman' to be interpreted as 'to prevent the death of the pregnant woman'? Or is the expression 'life' to be liberally construed so as to comprehend not only physical existence but also the quality of life as is understood in its richness and fullness consistent with human dignity?'

Delivering the opinion for the bench, Justice Sonak held that if a restrictive interpretation is given to Section 5 of the Act, it would not be possible for a court under writ jurisdiction to pass orders terminating a pregnancy beyond the period of 20 weeks due to the statutory limitation included in Section 3 of the Act. Section 3 states that any individual can undergo an abortion if in the opinion of a registered practitioner there is a likelihood of danger to the physical/mental health of the mother, within 12 weeks of pregnancy and within 20 weeks of pregnancy after due certification by two registered medical practitioners. Explanation 1 to Section 3 also states that pregnancy due to rape shall be presumed to be a hazard to mental health.

In the opinion of the court, giving a restrictive meaning to Section 5 of the MTP Act would defeat the purpose of the act which sought to provide a recourse to women with unwanted pregnancies by allowing them to terminate a pregnancy without any hassle especially in cases of rape. Keeping in mind the constitutional mandate of Article 21, the principles of dignity, privacy and body autonomy, the Bombay High Court held that:

"86…when it comes to the interpretation of the expression "life" in section 5 of the MTP Act, we cannot construe the same as restricted to mere physical existence or mere animal existence or mere survival of the pregnant mother. The expression cannot be confined to the integrity of the physical body alone but will comprehend one's being in its fullest sense. That which facilitates fulfilment of life as much within the protection of the guarantee of life. The expression will include the right to live with dignity and not to merely survive with indignity, not to mention the life – long physical and mental trauma which such episodes invariably generate."

Removal of Unnecessary Roadblocks to Ensure safe and timely Abortions

The Madras High Court in X vs State of Tamil Nadu [Crl O P 14506 of 2019] was required to consider a petition where a survivor of rape was being denied the right to terminate her pregnancy within the 20-week period. The Government of India had asked all state governments to establish medical boards in premier government institutes to examine cases where abortion was sought beyond the 20-week period and suggest adequate measures to save individuals the trauma of petitioning the constitutional courts for relief.

In the present case, the petitioner was blackmailed into having intercourse which led to conception. Within the 20-week limit, the petitioner filed an FIR under Section 375 of the Indian Penal Code,1860 and sought the help of the police to make arrangements for her to undergo an abortion. When the police did not seem forthcoming, the petitioner got herself admitted. However, the hospital was hesitant to perform an abortion and wanted to coordinate with the police since the conceptus would have to be sent to the police for forensic analysis. Furthermore, even when the hospital discovered that the petitioner was eight weeks pregnant, it could have terminated the pregnancy by itself. However, misunderstanding the scope of the Act and the powers of the medical board, it sent the petitioner to another hospital for an examination by the board.

Constrained, the petitioner approached the High Court of Madras which ordered an immediate enquiry by a medical board and an abortion if there was no danger to the life of the petitioner. Subsequently, it passed the following directions:

226. One shall not be forced to unnecessarily approach the High Court in cases where the pregnancy has not crossed 20 weeks and the termination of pregnancy should be carried out as per Section 3 of the MTP Act. In all other cases, exceeding 20 weeks of pregnancy, one can approach the High Court under Article 226.
227. In cases where there is danger to the life of the person, even beyond 20 weeks, pregnancy can be terminated without approaching Court under Section 5 of the MTP Act.
228. In all cases involving the termination of pregnancy where a criminal case is pending, samples will be taken for a DNA test of both mother and the conceptus (foetus and placenta) and it shall be sent to the forensic laboratory through the concerned police and a report shall also be received from the forensic laboratory.

Concluding Remarks

Both the judgments of the Bombay and the Madras High Court provide necessary impetus in driving the discourse regarding the right of rape survivors to abortion. The decision of the Bombay High Court in ABC vs State of Maharashtra [CWP 451 of 2019] has already been followed in another case which is encouraging courts to adopt a rights-based approach while determining the rights of rape survivors.

The judgment of the Madras High Court serves as another wake-up call to all authorities to act diligently to prevent a repeat of a scenario similar to the one in Z.v. State of Bihar, [(2018) 11 SCC 572] where the Supreme Court could not direct the termination of pregnancy of a rape survivor in the twenty-fourth week due to excessive danger to the life of the mother.

This, however, does not mean that the laws in relation to abortion do not need any change. Even though the Bombay High Court did say that the state cannot have a compelling interest that takes precedence over the mental and physical health of the mother, it refused to discuss the question in detail. It is important that these questions regarding body autonomy, the problematic "compelling state-interest doctrine", treating married and unmarried couples on par, are addressed soon by the Parliament.

Harsh is a final year law student at Symbiosis Law School, Pune. His areas of interest include Constitutional Law and Human Rights. He plans to pursue a career in litigation.