A progressive ruling on right to abort, yet fear of stigma lurks

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By: Aishwarya Ramkumar

In 2009, the Supreme Court affirmed that Article 21 of the Indian Constitution includes a woman’s right to her bodily integrity. This means women have the personal liberty to choose what happens to their body, including the right to conceive, abort, and make other reproductive choices. While this seems favourable, the Supreme Court also laid down an unsettling caveats—a need to balance this right with those of the prospective child, which the court refers to as a “compelling state interest”. In other words, the conditions laid down in the Medical Termination of Pregnancy Act (MTPA), 1971, were to be viewed as reasonable restrictions on a woman who exercises her right to an abortion.

The conditions laid down in the MPTA are rather arbitrary, and prioritise the protection of medical practitioners over the rights of pregnant women. This is so for various reasons, such as the requirement that at least one medic—a stranger who is oblivious to the social, economic, and personal conditions of the woman—must determine whether or not a woman can complete the term of her pregnancy; thus giving the medical opinion (of a doctor or registered medical practitioner) precedence over whether the woman wants to abort her foetus; and because of the availability of abortion only for pregnancy arising out of marriage, though this is proposed to be changed under the MTPA (Amendment) Bill, 2020, in which unmarried women have the same right to abort as married women.

Last year, the Rajasthan High Court upheld the right of a woman who is pregnant as a result of rape to seek an abortion even after the twenty-week threshold prescribed in the MTPA, 1971. (The 2020 Amendment Bill provides for permission to abort at 20 to 24 weeks and beyond 24 weeks, with the approval of two doctors or a medical board respectively, in some specified situations.)

In State of Rajasthan v. S, the Rajasthan High Court upheld the right of a woman who was raped to secure an abortion even after crossing the 20-week threshold prescribed in the MTPA. It is important to understand if this judgement has rightly been hailed as progressive.

In this case, S, a minor girl, was raped, as a consequence of which she was impregnated. She was denied an abortion at a hospital and by the district court, on the ground that the gestation period had crossed the 20-week threshold under the MTPA, 1971, after which she could not abort her foetus. Aggrieved, she approached the Rajasthan High Court and sought to exercise her right to bodily autonomy and personal liberty as guaranteed by Article 21. The single-judge bench rejected her appeal, citing a need to protect the life of the foetus. The division bench of the High Court, however, overturned this ruling and upheld her right to bodily autonomy.

The court unequivocally said, “…the infringement of the fundamental right to life of the [rape]victim heavily outweighs the right to life of the child in the womb.” It also reiterated that the “right of a child rape victim to make the reproductive choice of terminating the foetus heavily outweighs the right of the child in the womb to be born even where the pregnancy is at an advanced stage.”

Unfortunately, by the time this judgment was pronounced, S. had already given birth. The court then directed that the child be given protection under the Juvenile Justice (Care and Protection) Act, 2015. This High Court, therefore, reversed the situation where the rights of a pregnant woman are balanced against that of the foetus, and gave primacy to the rights of the woman. This judgment must certainly be hailed for upholding the rights of a woman as compared to previous rulings that focused on the rights of the unborn foetus. Yet it, too, suffers from some problems.

First, one reason the court gives for its decision is the “social stigma” S. would be subjected to if she becomes an “unwed mother”. This is a misplaced focus, for it presumes to act on behalf of our patriarchal society and its perceptions of women. It is concerning that primacy is accorded to an androcentric lens over the right to choose of the foetus-bearer. While the ends achieved by the judgment are favourable to women, the reasons also need to reject or avoid flawed social constructs that seek to regulate women’s autonomy.

Secondly, the court affirms that abortion is permitted even at an advanced stage of pregnancy if it is a result of rape. This position allows a rape victim to exercise her right to choose, but also begs a question: what about women who seek abortions even though they have not been raped? What of consensual sex between unmarried persons resulting in unwanted pregnancy? Can such people not seek an abortion at an advanced stage of pregnancy? While it is true that a court can only adjudicate on the matter before it, yet this ruling may set a dangerous precedent if it is wrongfully used as a basis to deny abortions to other women whose pregnancy has crossed the threshold of gestation prescribed in the MTPA.

The experiences of one who has been impregnated due to rape are certainly incomparable with those impregnated due to consensual sexual intercourse. Still, the choice available to both categories of women must be the same. No doubt, the former situation creates a legitimate separate category of individuals; however, it is also true that all individuals have a right to bodily autonomy.

That said this judgement does ensure that women who have been raped are not forced to continue their unwanted pregnancies. The constraints or so-called reasonable restrictions laid down in the MTPA are not favourable to women. This judgement does undo some systemic and structural oppression but does not go the whole way. It can be seen to pave the way for more such decisions that uphold the rights of women. (IPA Service)


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