Reproductive choices in India: Legislative, policy and legal perspective

A progressive evolution can be seen in the judiciary’s articulation of reproductive rights.

The emancipation of an Indian women has by far covered a long stretch, from setting the success stone to Indian Independence, to being pushed into the dynamics of household chores and now emerging as the today’s superwomen they have seen it all. It’s been more than 70 years that India has made itself independent and being amongst the first very few countries to have its own legal and policy frameworks pertaining to abortion, nevertheless women still have limited rather non-existent freedom to her reproductive choices. The barriers include the poor quality of health services, poor legal framework and denial of decisionmaking power.

Right of Rape Victim & Right of Foetus

 A progressive evolution can be seen in the judiciary’s articulation of reproductive rights. Recently, The Hon’ble Rajasthan High Court on May, 2020 in the case of State of Rajasthan & Ors. v. S. & Anr gave a historic judgement on rape of minor and her choice to terminate her pregnancy. The division bench of the HC comprising Justice Pushpendra Singh Bhati and Justice Sandeep Mehta, reiterated that the fundamental right of a child rape victim to abort her pregnancy “heavily outweighs” the right of her foetus who is yet to be born. It further held that the identity of such victim will not be revealed & immediate assistance in terms of legal and medical will be given to the victim to exercise her reproductive rights in terms of termination of pregnancy and lastly if the time of 20 weeks has been crossed then the district legal service authority should assist the victim and her guardian in the High Courts to file a petition for termination of pregnancy.

The pregnancy in case of rape victim is a result of the sexual assault and that mental stigma nowhere deserves to be ignored over a fictional right of an unborn foetus. It was rightful of the court to acknowledge that the right of abortion in case of rape victim should solely be the right of the woman herself, doing so will allow her the basic freedom to control her body and reproductive choice. The victim should not be forced to go through the mental and social stigma of being an unwed mother and carrying the child of her rapist.

Legislative Provisions

Section 3 of The Medical Termination of Pregnancy Act reads as below:

When Pregnancies may be terminated by registered medical practitioners.-

(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-

(a) Where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or

(b) Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are. Of opinion, formed in good faith, that,-

(i) The continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health; or

(ii) 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.

 Explanation 1.-Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2.-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. (3) In determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman’s actual or reasonable foreseeable environment.

(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.

(b) Save as otherwise provided in C1.(a), no pregnancy shall be terminated except with the consent of the pregnant woman.

Thereby the act does not mention about cases of abortion exceeding 20 weeks, which gives a weaker hand to the victims of rape, and secondly, fails to address the issue of mothers who come to know about the fatal foetus deformities at a later stage in their pregnancy and thirdly to minors and differently abled women. They are left with no other option but to bear the weights of this pregnancy throughout their own life and also throughout the life of that born child.

In order to address this lacuna, the Union Cabinet approved the Medical Termination of Pregnancy (Amendment) Bill, 2020, to amend the Medical Termination of Pregnancy Act, 1971. The bill requires further approval in the ensuing session of the Parliament to form a revised Act. The proposed amendments permit termination of pregnancy up to 20 weeks of gestation the opinion of one registered medical practitioner and for termination of pregnancy of 20-24 weeks of gestation opinion of two registered medical practitioners will be required. It further permits the upper gestation limit from 20 to 24 weeks for special categories of women which includes vulnerable women including survivors of rape, victims of incest and other vulnerable women (like differently abled women, minors) etc.

 Judicial Pronouncements & Way forward

Throwing some light on the timeline of Indian judiciary vis a vis the matter in hand we can see how far the Indian judiciary has come.

 In 2009, the Hon’ble Supreme Court of India recognised freedom of women with respect to her reproductive choices under the ambit of “personal liberty” under Article 21 of Constitution.

In 2013, understanding the anguish and humiliation of a rape victim, the Hon’ble Madhya Pradesh High Court in the case of State of Madhya Suchita Srivastava & Anr v. Chandigarh Administration stated that the rape victims should not need any judicial authorisation in order to terminate the pregnancy caused due to the rape as it will cause grave injury to the victim.

 Court upheld the woman’s right to make reproductive choices as a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. In a true spirit of finding a logical conclusion, court upheld that the reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.

 The recent judgement by the Hon’ble Rajasthan High Court in State of Rajasthan & Ors. v. S. & Anr Silverline the shadowed laws on reproductive choices in India & further empowers the rights of rape victim. The court noted that while directing that the rape victim shall deliver the child, the Single Bench failed to consider the fact that the personal liberty of reproductive choice. Indisputably, a woman’s right to privacy, dignity and bodily integrity is a fundamental right guaranteed by Article 21 of the Constitution of India. When the prospective child has been conceived as a result of rape, the eventuality has been held as causing grave injury to the mental health of a woman. The Rajasthan High Court held that the victim conceived because of the offence of sexual assault committed upon her and thus, the pregnancy was a forced one rather than it being of her choice. Victim will carry a stigma for the remainder of her life that the offspring born as a result of the ghastly offence of rape committed upon her therefore her request should have been acceded to over and above the right to life of the child yet to be born. The physical and mental trauma which the victim would have to suffer as a result of unwanted delivery, would significantly add to her woes and misery. The Hon’ble Rajasthan High Court in its judgement further speaks about the risk of early pregnancy and noted that a serious debate is going on to increase the valid age for marriage of a girl from 18 years to 21 years.

 In summary most advanced societies regard teenage pregnancy as being socially as well as medically unacceptable. At a time when there is a significant rise in rape cases, broken criminal justice system and systemic indifferences; judicial pronouncements are a beacon of hope for upholding and defending women’s reproductive rights.

 Adv. Ayushi Agarwal & Adv. Siddhant Mishra practice before the Lucknow Bench of Allahabad High Court.