The petitioner, now over 25 weeks pregnant, had cited marital discord and a desire to end her marriage as grounds to seek an abortion.
New Delhi: The Supreme Court Monday denied a 20-year-old woman permission to terminate her over-25-week pregnancy, suggesting that aborting a foetus amounted to murder.
Under Indian law, pregnancies older than 20 weeks can only be terminated if they pose a danger to the mother’s life, or are likely to culminate in serious physical or mental abnormalities in the child.
A bench comprising Justices Kurian Joseph and Sanjay Kisan Kaul told the woman’s advocate, Sneha Mukherjee, that the unborn child should have been represented in court instead of the mother.
“You should make the mother hear her child’s heartbeat,” Justice Joseph said.
In her plea to the Supreme Court, Sarita (name changed) challenged a Bombay High Court order, dated 19 June, denying her permission to terminate her pregnancy of 21 weeks and three days. Reportedly a victim of domestic violence, Sarita listed marital discord and a desire to initiate divorce proceedings and pursue her career as the grounds for her plea.
The high court cited the Medical Termination of Pregnancy (MTP) Act, which lays down the 20-week threshold, to say the reasons listed weren’t recognised as valid grounds under the legislation.
On Monday, Justice Joseph said Sarita would “regret killing the baby” if she “reconciles with the husband”.
‘Act encourages unsafe abortions’
Sarita’s plea in the Supreme Court was significant since she had asserted her right to privacy, as accorded to her by the August 2017 judgment of a nine-judge Constitution bench of the apex court.
She had argued that being “forced to continue with an unwanted pregnancy” would cost her the right to safeguard the privacy of procreation, motherhood and childbearing as the MTP Act “seemed to be making these choices for her”.
The plea 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 beyond the threshold.
“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,” she stated in her plea.
She added that the MTP Act encouraged “desperate women to seek unsafe abortions from untrained medical personnel” in the absence of legal avenues.
“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 added.
‘Demands for dowry, torture’
According to the petition, Sarita was married at the age of 14 but only began living with her husband and in-laws after 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.
However, she has alleged that two months after she moved in with her husband, she was prohibited from taking her Class 12 board exam. Demands for dowry and mental and physical torture ensued, she added.
Her petition states that 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. Instead, she claims, her husband allegedly tortured her, forcing her to leave once again. By this time, she was pregnant.
According to the petition, she was advised by her doctors to use protection during sex, but while oral contraceptives were ruled out as she was an epilepsy patient, her husband allegedly refused to use male contraceptives.