Plea in Supreme Court assails restrictions on termination of pregnancy under Medical Termination of Pregnancy Act 1971

A Public Interest Litigation petition has been filed in Supreme Court assailing Sections 3 and 5 of the Medical Termination of Pregnancy Act, 1971 which places various restrictions on termination of pregnancy..The petition has been filed by three women, Swati Agarwal, Garima Sekseria and Prachi Vats through advocate Sansriti Pathak..A Bench of CJI Ranjan Gogoi and Justice Deepak Gupta issued notice in the matter today..The challenge raised in the petition are to the following provisions:.Section 3(2)(a).Section 3(2)(a) of the Act deals with cases where the length of pregnancy does not exceed 12 weeks i.e. the first trimester. In a case where the length of the pregnancy does not exceed 12 weeks a pregnancy may be terminated by a medical practitioner if an opinion is formed by him/ her that the continuance of pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health or there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped..The petitioners have submitted that the provision imposes severe restriction on the exercise of the reproductive choice of the woman by providing for a precondition of an opinion by the medical practitioner about there being a risk to the life of the lady or of grave physical or mental injury or risk of serious foetal abnormalities if the pregnancy is continued..The restriction puts an undue burden on the exercise of free reproductive choice and renders it meaningless. The petitioners submit that this provision in substance makes right to terminate pregnancy an exception which is otherwise recognized as an important facet of right to life, human dignity, autonomy and self-determination..It is submitted that conclusive medical evidence has established that abortion in the first trimester entails lesser risk to a person than the risks involved when pregnancy is carried to a full term. Judicial cognizance of this fact has been taken by the US Supreme Court in Roe Vs Wade [410 US 113], the petition points out..It is submitted that at this stage of pregnancy there is no legitimate interest of the State involved for interfering in the right of reproductive choice of the woman and therefore there should not be any intervention by the State curtailing the right of the lady to terminate pregnancy. Only regulatory measures aimed at safe abortions can be made..In view of the above, it has been submitted that Section 3(2) (a) fails to meet the requirement of reasonableness and proportionality and is arbitrary therefore liable to be struck down..Section 3(2)(b).Thus, Section 3(2)(b) permits termination of pregnancy beyond 12 weeks and not exceeding 20 weeks provided two registered medical practitioners are of the opinion that the continuance of pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health or there is substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped..It is submitted that restricting the permissible length of pregnancy to 20 weeks is excessive and harsh. With the advent of science and technology, diagnosis of foetal abnormalities is possible at subsequent stages and with the advancement of science and technology it has become possible to terminate the pregnancy even at later stages..The petitioner points out that even the Medical Termination of Pregnancy (Amendment) Bill 2014 and Medical Termination of Pregnancy (Amendment) Bill 2017 have proposed to enhance it to 24 weeks. The Statement of Reasons of the 2017 Amendment Bill notes that during the intervening period after the Act was enforced, several genuine cases came up where the fact of foetus with serious risk of abnormalities with grave risk to physical and mental risk to mother had been noticed after twenty weeks. As a result, many women were forced to move the Supreme Court for permission to end pregnancy beyond twenty weeks, leading to a lot of mental and financial hardship to such pregnant women..Therefore, Section 3(2)(b) which restricts the right to seek an abortion to 20 weeks is violative of Articles 21 of the Constitution..Explanation 2 to Section 3(2).Explanation 2 to Section 3(2) is violative Article 14 of the Constitution..Explanation 2 to Section 3(2) provides that where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman..It is the petitioner’s case that the above provision amounts to hostile discrimination against single women without any nexus to the object which is to terminate an unwanted pregnancy..The object is to enable a woman to terminate an unplanned and unwanted pregnancy since a pregnancy entails several physical, mental and socio-economic consequences. Keeping the object in view, the petitioner contends that there is no rationale for not affording the same protection to an unmarried woman. To the contrary, an unwanted and unplanned pregnancy will invariably in the case of an unmarried woman result in more grave consequences..Studies suggest that unmarried sexually active women face considerable obstacles to contraceptive use and abortion facilities. Therefore, the affording of protection only to married women is arbitrary and amounts to hostile discrimination..Thus, the petitioners submit the provision treats equals unequally amounting to hostile discrimination and therefore liable to be struck down as being violative of Article 14 of the Constitution..Section 5.Section 5 enables termination of pregnancy beyond 20 weeks where the registered medical practitioner is of the view that termination of such pregnancy is immediately necessary to save the life of the pregnant woman. It has been submitted that this provision is arbitrary and severely restricts the right to life and right to choice envisaged under Article 21 of the Constitution in more than one ways..It proscribes pregnancy even in the event fetal abnormalities are detected post 20 weeks. Although the High Courts and Supreme Court have time and again permitted abortions post twenty weeks where fetal abnormalities have been detected post 20 weeks..It proscribes pregnancy even in cases where the pregnancy is a result of rape..There may be a change of circumstances where the continuance of pregnancy may severely jeopardize the physical or mental health of the woman though not necessarily be a threat to the life of the woman..Section 5 insofar as it permits abortion after 20 weeks only on the ground of immediate necessity to save the life of the pregnant woman is violative of Articles 14 & 21..Section 3(4).Section 3(4) (a) is violative of Article 21 of the Constitution so far it makes consent of guardian mandatory in case of mentally ill persons and minors..In the case of minors or mentally ill persons, the pregnancy cannot be terminated unless their guardian has given consent in writing. As a consequence, the guardian enjoys complete autonomy over such persons. An unwilling minor or mentally ill person will be compelled to carry the pregnancy to the full term and face all the consequences and challenges which come along with the fact of being a mother owing to the refusal of the consent of the guardian..The petitioners contend that in case of minors there should be an alternative route for making safe abortions accessible in a situation where the guardian refuses to consent or the minor cannot approach the guardian due to social stigma and pressure as is in the case of various legislations in other countries such as the USA. Making the guardian the whole sole decision-making authority for making a decision of whether to terminate the pregnancy or not is arbitrary and completely reduces the autonomy of the minors and mentally ill persons envisaged by Article 21 of the Constitution, which is equally afforded to them by the Constitution..Prayers.Based on the above, the petitioners argue that current framework and infrastructure for termination of pregnancy is wholly inadequate and fails to afford safe abortions to a large section of women especially belonging to the rural area and from economically weaker sections of the society thereby infringing their right to health recognized by Article 14 of the Constitution..Article 21 of the Constitution imposes positive obligations on the State. It is submitted that right to safe abortions emanates from right to health envisaged in Article 21 of the Constitution..The petitioners have, therefore, prayed for declaring the above provisions of the MTP Act, 1971 as unconstitutional..The petitioners have also prayed for implementation of the Medical Termination of Pregnancy (Amendment) Bill, 2014 and also sought directions to be issued to the Central Government to take steps to provide access to safe abortion to all women especially those belonging to socially and economically backward sections of the society..[Read Order]