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In SC, woman seeks abortion past 20-week ceiling, asserts right to privacy

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Plea says privacy accorded to her by the August 2017 nine-judge bench challenges validity of MTP provisions

New Delhi: The debate over a woman’s right to abortion past the 20-week ceiling is set to be reignited Monday, 9 July, when the Supreme Court will deliberate on whether a 20-year-old can terminate her pregnancy that has crossed the time threshold as mandated by law.

The apex court is set to hear the plea, filed by Sarita (name changed) Friday, challenging a Bombay High Court order, dated 19 June, which had denied her permission to terminate her pregnancy of 21.3 weeks.

The high court ruled that Sarita’s pregnancy had crossed the 20-week ceiling as laid down in the Medical Termination of Pregnancy (MTP) Act.

It also held that the circumstances of the petitioner — who had cited marital discord, a desire to initiate divorce proceedings and to pursue her career as reasons for seeking an abortion — did not fall under the scope of the legislation.

Sarita’s plea in the Supreme Court is all the more significant as it has asserted her right to privacy, as accorded to her by the August 2017 judgment of a nine-judge bench of the apex court.

The petitioner has submitted that being “forced to continue with an unwanted pregnancy”, amounts to her losing her right to safeguard the privacy of procreation, motherhood and childbearing as ostensibly the MTP Act is making these choices for her.

Her petition has also challenged the Constitutional validity of Section 3(2)(b) of the MTP Act, which stipulates the 20-week ceiling, and the scope of Section 5 of the Act, which sets the criteria for abortion after the threshold. These include termination of such pregnancy that would “involve a risk to the life of the woman” or “substantial risk” that the child would suffer from serious physical or mental abnormalities.

“When laws like India’s MTP Act do not provide exceptions to protect the health and welfare of the mother, these laws violate the petitioner’s fundamental right to life, health and dignity under the domestic and international norms,” Sarita’s plea reads.

It also claims that the MTP Act encourages desperate women to seek unsafe abortions from untrained medical personnel. “Illegal abortions are the third leading cause of maternal death in India and account for 13 per cent of maternal deaths worldwide. Expanding the exceptions allowed under the MTP Act to include protection of maternal health could easily eliminate any of these senseless deaths,” the petition in the top court reads.

The case

In her petition, Sarita says she was married off at the age of 14 but only began living with her husband and in-laws when she turned 18 in 2016. At the time of marriage, Sarita claims she was assured by her husband that she would be allowed to study further.

Sarita, however, alleges that two months after she moved in with her husband, she was not allowed to take her Class 12 board exams and demands of dowry allegedly began, followed by mental and physical torture.

Her petition says she then filed a police complaint and moved back with her parents.

Over a year later, she returned to her husband on the assurance that she could continue with her education and career. She alleges that her husband instead allegedly tortured her, forcing her to leave once again but this time she was pregnant.

Her petition says she was advised by her doctors to use protection during sex but oral contraceptives were ruled out as she was an epilepsy patient, while her husband allegedly refused to use male contraceptives.

No relief from the Bombay High Court

When Sarita approached the Bombay High Court for relief, she was 21.3 weeks pregnant — 10 days past the 20-week ceiling. The court denied her permission on the grounds that her plea did not fulfill the conditions laid down in the MTP Act.

“The petitioner is seeking termination of pregnancy based on the cause viz. her matrimonial discord with her husband, her intention to initiate divorce proceedings and to pursue her career and improve her educational qualification. If the aforesaid cause as cited by the petitioner are examined in the light of the provisions of the Medical Termination of Pregnancy Act, 1971, same not at all recognised to form the basis for accepting the prayer of the petitioner to terminate the pregnancy,” the court ruled.

“Her matrimonial discord cannot be considered as a reason for permitting her to have termination of pregnancy by invoking provisions of the Medical Termination of Pregnancy Act, 1971. For the eventualities which are spelt out in the petition, it is really difficult to consider and grant the request of the petitioner for permitting her to have termination of pregnancy,” the court added.

The high court also referred to the Suchita Srivastava vs Chandigarh Administration case, in which the Supreme Court had expressed that the “right of a woman to have reproduction, the choice is insegregable part of her personal liberty as envisaged under Article 21 of the Constitution.”

In this matter, however, the high court observed that the apex court had also held “that the provisions of 1971 Act can be viewed as putting reasonable restrictions on exercise of reproduction choice of a woman.”

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