New Delhi: The Supreme Court has questioned the legislative intent behind Section 3(2-B) of the Medical Termination Pregnancy (MTP) Act, which allows the termination of a pregnancy that crosses the gestational period of 24 weeks.
A three-judge bench led by Chief Justice of India D.Y. Chandrachud said the MTP Act makes a “value judgement” by limiting the circumstances that can cause injury to the mental and physical health of a woman. The law recognises a “substantially abnormal foetus” as the only circumstance that can impact the mental and physical health of the woman carrying it.
This, according to the court, is not based on scientific parameters and “would prima facie appear arbitrary and unreasonable”, since it doesn’t take into account other factors that could harm a pregnant person. This would also include pregnancy caused due to incest or rape.
The court’s critical observation against Section 3(2-B) of the MTP Act is a part of the 21-page order by which the SC, on 29 April, recalled its earlier order that allowed a 14-year-old girl to terminate her then 29.6-week pregnancy.
Significantly, the order also gives primacy to a minor and even a mentally ill pregnant person’s opinion in case the court faces a plea to terminate such an individual’s pregnancy. Reiterating that consent of a pregnant person in decisions of reproductive autonomy and termination of pregnancy is paramount, the bench ruled that a pregnant minor’s opinion must weigh more than their guardian’s while deciding an abortion plea.
In case the minor’s view differs from the guardian’s then the court must regard the former’s view as an important factor, the court has said.
MTP Act legalises termination of pregnancy irrespective of the length of the gestation period only under two circumstances. According to Section 5 of the law, a pregnancy may be curtailed even if it crosses 24 weeks if the medical practitioner believes that it is necessary in order to save the pregnant person’s life.
This medical opinion must be formed in “good faith,” and can be cited for doing immediate termination to save the life of the pregnant person.
Section 3(2-B) stipulates that no limit shall apply to the length of the pregnancy for terminating a foetus that is found to be suffering from substantial abnormalities.
The bench, also comprising justices J.B. Pardiwala and Manoj Mishra, said there are other compelling circumstances such as rape leading to pregnancy, that could impact a pregnant person’s mental and physical health. Not granting legal recognition to other possible situations that can harm a pregnant woman’s overall health condition would prima facie make the MTP act “unreasonable and arbitrary,” the bench added.
“The value judgment of the legislation does not appear to be based on scientific parameters but rather on a notion that a substantially abnormal foetus will inflict the most aggravated form of injury to the pregnant person,” the bench observed.
Calling this provision a “suspect” on the ground that it “unreasonably alters the autonomy of a person by classifying a substantially abnormal foetus differently than instances such as incest or rape,” the bench said it would examine this aspect in an appropriate proceeding in future if it becomes necessary.
The minor girl in this case became pregnant as a result of a sexual assault on her. By the time her parents approached the Bombay High Court for the termination, she was over 27 weeks pregnant.
While the first medical board’s opinion, placed before the HC, opined the girl was physically and mentally fit for termination of her pregnancy, the second “clarificatory opinion” denied it on the ground of the gestational age of the foetus and the fact that there no substantial abnormalities that could affect the girl’s mental and physical health.
In response to an appeal filed by the girl’s parents, the court on 22 April allowed termination of the pregnancy. Later, however, on being informed that the girl’s mother gave contradictory statements to the board of doctors that was asked to terminate the pregnancy, the top court re-heard the matter.
After a detailed personal deliberation with the parents, the bench on 29 April recalled its week-old order to allow the girl to carry on with her pregnancy. This was after the parents desired to give away the baby for adoption to their relatives.
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‘Right of dignity, autonomy, and reproductive choice’
In its judgment, the top court faulted the second medical board’s opinion for not favoring a medical termination, saying this kind of change “may cause undue trauma and exertion to a pregnant person whose mental health is understandably under distress”. If the medical board wants to clarify its earlier opinion, it must state its reasons.
Emphasising the MTP Act does not allow any interference with the personal choice of a pregnant person, the court said a medical board or the high court couldn’t refuse abortion merely on the ground that the gestational age of the pregnancy is above the statutory prescription.
Hence, the medical board must examine the pregnant person to give an absolute view on the aspect of the risk to a pregnant person’s physical and mental health, the court said.
The judgment also talks about the importance of a medical board’s opinion under MTP. The purpose of this opinion, it said, is to protect the health of a pregnant person, to facilitate a safe, hygienic, and legal abortion, and to enable the court to exercise its jurisdiction and decide a plea for termination effectively. The absence of a medical view would affect the court’s functioning when hearing petitions filed by those who seek abortion of their foetus beyond the gestation period, the bench observed.
“The right to abortion is a concomitant right of dignity, autonomy and reproductive choice. This right is guaranteed under Article 21 of the Constitution. The decision to terminate pregnancy is deeply personal for any person. The choice exercised by a pregnant person is not merely about their reproductive freedom but also about their agency as recognised by this court,” the court said.
Therefore, a medical board’s opinion must not compromise a pregnant person’s fundamental right. Since the inadvertent power given to a medical opinion stands in the way of a pregnant person exercising their choice to terminate the pregnancy, the view given to the court must balance the legislative mandate of the MTP Act and the fundamental right of the pregnant person seeking abortion.
The bench acknowledged that medical practitioners fear criminal prosecution in cases where they favour abortion. But this fear, it added, “jeopardises the fundamental freedoms of pregnant persons guaranteed under the Constitution.”
Moreover, the scheme of the MTP Act and the steady line of application of the law by the courts have made it clear that the medical board of registered medical practitioners, who are required to give their opinion, cannot be prosecuted for any act done under the MTP Act in good faith.
In the given case the court took back its earlier order because both the minor girl as well as her parents consented to go ahead with the full-term pregnancy.
“The MTP Act does not allow any interference with the personal choice of a pregnant person in terms of proceeding with the termination. The Act or indeed the jurisprudence around abortion developed by the courts leave no scope for interference by the family or the partner of a pregnant person in matters of reproductive choice,” the court said.
It also cautioned against the delays caused by a change in the opinion of the medical board or court procedures, saying that the processes must not “frustrate the fundamental rights of pregnant persons.”
“We, therefore, hold that the medical board evaluating a pregnant person with a gestational age above twenty-four weeks must opine on the physical and mental health of the person by furnishing full details to the court,” the court said.
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