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WRITTEN BY- Richa Shukla
Right to freedom of choice: an illusion
“A woman freedom of choice whether to bear a child or abort her pregnancy are areas which fall in
the realm of privacy.”- supreme court dictated its version of woman’s right to choice under the head
of right to privacy…and in yet another women centric judgement, the Supreme court on 27 th
October upheld the adult woman’s unimpeachable right to give birth or terminate pregnancy. These
judgements sing glories of advancing Indian legal system in sense of acknowledgement of woman’s
right as fundamental, but ironically the Medical Termination of Pregnancy Act 1971 reveals a
different picture all together.
Choice is not a factor for abortion under the MTP act. A woman cannot simply opt for termination of
pregnancy for the reason that she doesn’t want to be a mother, it only offers conditional allowance.
Abortions are predicated on reasons like a potential handicapped or malformed child, health of the
mother, rape, underage pregnancies, pregnancies in women of reduced mental capacity and failure
of contraceptions. Mere legalising abortion does not facilitate women’s right of personal autonomy,
a glaring mistake which is yet to get the recognition.
Justice delayed is justice denied:
A maxim which becomes even more relevant in the subject of pregnancy, since each day is
important. A delay of a few weeks may give the outcome of unchangeable circumstances. The
Supreme Court granted compensation of Rs. 10 lakh to a ten year old girl, whose plea could not be
accepted, on the advice of medical board considering the fact that she was 32 week pregnant when
she was finally able to approach the highest court after fulfilling all the legal proceedings which
includes firstly knocking the doors of lower courts. This compensation was made considering the
delay caused in the legal proceedings. I am drawn towards the question that why seeking advice and
intervention from court and medical boards becomes a punishment for the woman who is already
going through a mental trauma? It highlights the double violation inflicted on that pregnant woman.
Such delay, causing judgements to lose its relevancy is also a grief for the courts.
In January, a 35 year old HIV+ woman from Bihar was compelled to have a baby because the
paperwork got stuck at a government hospital for 4 precious weeks. The court rejected her plea, for
the reason that she was already in 26 weeks pregnant by then. Result- a life risking delivery.
In its recent judgement two days back, SC has asked to set up ‘permanent medical panels’ in every
state to address abortion pleas for quick delivery of justice. It considered the problem of crucial time
getting wasted in approaching courts. To place this suggestion of the sovereign court before the
competent authority to incorporate it in the proposed bill, is a wait which still prevails.
The queries at hospital suggest a rise in the number of adolescents seeking abortion. “the number of
school girls coming to us with pregnancy queries has increased remarkably. And the kind of
questions they ask definitely reflect increased physical intimacy,” said Dr Sunita Verma, consultant
gynaecologist at max health as quoted in Times of India.
A study conducted by a counselling agency revealed 95% of adolescent abortion seekers in the cities
are in the age group of 17 to 19 years.
Doctors show their concern about the gynaecological problems in future to the extent of infertility
and high incidence of sexually transmitted infections due to early sexual life. “one in 20 adolescent
contracts this infection every year, and half of all cases of HIV/AIDS is among the youth below 25
years”, said Sudha Tewari of Parivar Seva Sansthan.
Restricting the teenagers by strict ruling or creating unavailability of right to abortion is not the
solution since that will only lead to delivery of unwanted babies. More concerning is the health
issues, which will arise, since the girls at such tender age are not prepared to conceive, both
mentally and physically.
Due to the stigma attached to underage pregnancies, girls in such situations end up bearing the
brunt of it. With the easy availability of emergency contraceptive pills to terminate pregnancy, a
back seat is given to the surgical methods. Self-abortion and brotched-up abortions too, are
implemented as a way to terminate pregnancy by the adolescents.
Most of these abortions take place without the consent of the parents, which is requisite under the
eyes of law. However, the concerning point is adolescents engaging in the dangerous wrong
methods of termination due to lack of adult guidance and communication gap between parents and
teenagers. Considering the act right or wrong is upon the discretion of parents, but supporting the
child at such crisis is necessary. Openness and receptiveness can be wonderful healers of the
Advancement in technology is yet to be considered:
There is a ceiling of 20 weeks upto which a woman can opt for abortion if her condition match which
those given in the current form of MTP act. Approval of court is required to opt for abortion beyond
this ceiling if continuing such pregnancy poses a threat to either the mother or the baby’s life. In July
this year, a woman from Kolkata was allowed to terminate her 26 week pregnancy because the
foetus suffered from cardiac ailments. Close on her heels was the recent case of September, in
which the supreme court allowed a 13-year- old rape victim to abort her 32 weeks old pregnancy.
Such cases shed light on the broken legal system and the urgent need for amendments.
Dr. Duru Shah, who has, in the past, served as the president of FOGSI and as a member on the ethic
committee of the FIGO concurs. In his words, “the limit definitely needs to be extended upto 24
weeks, because medical advancements have ensured that it is perfectly safe and ethically sound to
terminate pregnancies at that stage.”
Doctors are of the view that it’s time to update the MTP act considering the technological
advancement in the medical field. Unless, such amendments are made, courts will be forced to
evaluate and rule on individual cases.
Admirable is the fact that India was one of the first countries in the world to legalise abortion in
order to encourage family planning and population control. Indisputably, one prime objective was to
curb sex selective abortions. While the noble intent still remains, eventualities need consideration.
Though the amendment bill has been proposed, it still awaits to become a reality. The parenting is
questioned and indicates the cry for better rapport between parent and child.
The travesty of justice must never be entertained.