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Supreme Court gave a split verdict on plea to ‘Recall Termination Of 26-Week Pregnancy’

  • Category
    Polity & Governance
  • Published
    14th Oct, 2023

Context:

The Supreme Court bench, while hearing the recall application filed by the Union government against the Court's order allowing medical termination of a 26-week pregnancy of a married woman, referred the matter to a larger bench.

About the case:

  • On October 9, the Bench of Justices Kohli and Nagarathna had, after getting a report from an All India Institute of Medical Sciences (AIIMS) medical board, allowed the medical termination of the woman’s pregnancy in accordance with her wish.
  • However, the Union government returned to the apex court with an application.
  • The application said that one of the expert doctors on the medical board had emailed Ms. Bhati on October 10 against the abortion, saying the child should be given a chance to survive.

Government’s Argument:

  • Additional Solicitor General Aishwarya Bhati, for the Union government, mentioned that the woman has no “absolute right of autonomy to exercise her reproductive rights in a way that would take away the rights of her unborn child”.
  • Referring to the Medical Termination of Pregnancy (Amendment) Act of 2021, which extended the deadline for abortion in “exceptional circumstances” to 24 weeks.
    • These exceptional circumstances allowed medical termination only if it was necessary to save the life of the mother or in case of a fatal deformity detected in the foetus.
  • Once there is a viable baby, the relief cannot be one-sided.
  • Unless she wants to keep the child, her right to bodily autonomy or integrity cannot be beyond the Act. Mother’s fundamental right to choice can be curtailed by the Parliament.

Supreme Court’s Split Verdict:

  • Justice Kohli, in her opinion, agreed with the government that woman should not be permitted to terminate the pregnancy.
  • The court also asked the woman if she would be willing to foster the unborn child till the government could arrange for its adoption.
  • However, Justice Nagarathna disagreed saying the woman’s decision ought to be respected, considering mother’s socio-economic

What are women’s reproductive rights?

Based on the multiple definitions of reproductive rights, it can be said that they include some or all of the following rights:

  • Right to safe and legal abortion.
  • Right to control one’s reproductive functions.
  • Right to access in order to make reproductive choices free of coercion, discrimination and violence.
  • Right to access education about contraception and sexually transmitted diseases and freedom from coerced sterilization and contraception.
  • Right to protection from gender-based practices such as female genital cutting and male genital mutilation.

MTP Amendment Act, 2021

  • In 2021, Parliament amended the law to allow for abortions based on the advice of one doctor for pregnancies up to 20 weeks.
  • The modified law needs the opinion of two doctors for pregnancies between 20 and 24 weeks.
  • Further, for pregnancies between 20 and 24 weeks, rules specified seven categories of women who would be eligible for seeking termination under Section 3B of rules prescribed under the MTP Act;
    • Survivors of sexual assault or rape or incest,
    • Minors,
    • Change of marital status during the on-going pregnancy (widowhood and divorce),
    • Women with physical disabilities (major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016)
    • Mentally ill women including mental retardation,
    • The foetal malformation that has a substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped, and
    • Women with pregnancy in humanitarian settings or disasters or emergencies may be declared by the Government.

Arguments in favour of bodily rights

Argument against bodily rights

  • A female is considered a moral person that is entitled to rights, including the right to life.
    • So, abortion is deemed acceptable as the foetus is not a person.
    • A list of criteria of personhood is identified, which includes consciousness, reasoning, activity, communication and self-awareness. A foetus undeniably is incapable of fulfilling these criteria.
  • The mother, who is a person, has a right to life and it supersedes the rights of the foetus to choose whether or not it remains connected to her body.
  • Also, pregnancy is assumed to be a foreseeable consequence of heterosexual intercourse, that too when there is no intention to ‘have a baby’. So, denying her the right to abort the child when she was not planning for it is unwarranted.
  • ‘Future like ours’ argument: Abortion is wrong because it deprives the foetus of a potential 'future like ours'.
    • It suggests that death is a bad thing because it deprives people of all the experiences, enjoyments, opportunities that would make up their future personal life.
  • Moral conduct: Killing an innocent human being is a moral wrong. Those who are against abortions believe that human life begins at conception, and by drawing the same analogy, the foetus is an innocent human being.
  • So, killing the foetus is wrong and abortion is always wrong.
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