Abortion For Prisoners: Judiciary Eases Procedure

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(L-R) Bombay High Court; a silhouette portraying pregnant woman in jail. Illustration: Rajender Kumar
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In a progressive judgment, the Bombay High Court has removed red-tapism for prisoners wanting to abort their fetus and has facilitated faster examination for them in hospitals

By Nayantara Roy

On September 19, the Bombay High Court gave a judgment which brought succor to prisoners who were finding it difficult to get an abortion due to unnecessary red tape. The Court found that procedures, not prescribed under the Medical Termination of Pregnancy (MTP) Act, 1971, were being followed. Not only were these procedures unnecessary, but also served no purpose other than to delay the termination of an unwanted pregnancy.

A City Civil and Sessions Court judge who visited Byculla District Prison under the orders of the Bombay High Court came across a prisoner who was four months pregnant and wanted to terminate her pregnancy. Her reason was that she already had a five-month-old baby who had many health problems, including convulsions/epilepsy, hernia, loose motions and fever. The prisoner herself was in bad health, suffering from repeated bleeding. Under the circumstances, she would not have been able to take care of the second baby. The medical officer of the jail was also of the view that the pregnancy should be terminated.

The judge was informed that termination of the pregnancy itself would take a long time as permission would have to be taken from a committee that looked into these matters. Therefore, the matter was placed before the Bombay High Court.

QUICKER PROCESS

Looking at the provisions of Sections 3, 4 and 5 of the MTP Act, the Court found that permission from this committee was not necessary at all. What was required was that medical practitioners examine the patient and if they felt that her physical or mental health would be adversely affected by the birth of the baby, the pregnancy should be terminated as per her desire.

If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health.

—Bombay High Court

The High Court observed that the committee’s (formed under rule 2(e) of the Medical Termination of Pregnancy Rules, 2003 and referred to in Section 4 of the MTP Act, 1971) only function was to grant approval in respect of places other than hospitals, where medical termination of pregnancies could be effected. Somewhere along the way, the committee had started to decide which cases could be sent for MTP, leading to delays which could seriously affect the termination.

The Court had appointed a lawyer as amicus curiae in the case, who found another case—that of a 15-week pregnant prisoner who wanted to terminate her pregnancy but whose request was not being heeded. Under the orders of the Court, she was admitted to hospital and after examination by doctors, the pregnancy was terminated.

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The Court then put in place a process helping compliance with the MTP Act and which facilitated faster examination of pregnant patients. This included getting the women to OPDs of hospitals in time for testing.

LIVE-IN RELATIONSHIPS

The judgment has made some interesting statements, some of them made in passing but pertinent nevertheless. The observation of the judges that Explanation 2 to Section 3 (2) of the MTP Act could be extended to live-in relationships, finds support from advocate Gautam Bhatia, who also feels that the ambit of the section should be extended to include all persons. Explanation 2 reads: “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.”

Critics of the current legislation say that the clause relating to MTP on account of failure of contraception should be extended to all people, and not just married couples

Bhatia attributed the legal justification for extending the failure of contraception clause to “live in” couples to an interpretation of the constitution. He said: “Consequently, it would be vulnerable to a possible future constitutional challenge asking the Court to strike off the word ‘married’ from the statute altogether, and extend its application to all women. Therefore, the Court’s laconic reading of ‘married’ to include relationships in the nature of marriage, despite its undeniably important practical implications, is something of a missed opportunity.”

Critics of the current legislation say that the clause relating to MTP on account of failure of contraception should be extended to all people, and not just married couples. In his article, Bhatia also takes this position.

However, the rationale for extending the ambit of Explanation 2 to “live in” couples predates the constitution and has common law roots. There have been several judgments of late recognizing the rights of two people living together as a couple.

Pre-independence judgments have been passed where, when no proof of marriage could be submitted, the fact that they had lived together and been accepted as such by society was accepted as a spousal relationship in common law. (see A. Dinohamy vs W L Balahamy, AIR 1927 PC 185).

WOMAN’S CHOICE

More importantly, the Bombay High Court judgment’s interpretation of the MTP does not restrict the application of the Act to the two Explanations to Section 3(2). The judgment said: “A woman irrespective of her marital status can be pregnant either by choice or it can be an unwanted pregnancy. To be pregnant is a natural phenomenon for which woman and man both are responsible. Wanted pregnancy is shared equally, however, when it is an accident or unwanted, then the man may not be there to share the burden but it may only be the woman on whom the burden falls. Under such circumstances, a question arises why only a woman should suffer. There are social, financial and other aspects immediately attached to the pregnancy of the woman and if pregnancy is unwanted, it can have serious repercussions. It undoubtedly affects her mental health. The law makers have taken care of helpless plight of a woman and have enacted Section 3(2)(b)(i) by incorporating the words ‘grave injury to her mental health’. It is mandatory on the registered medical practitioner while forming opinion of necessity of termination of pregnancy to take into account whether it is injurious to her physical or mental health. While doing so, the woman’s actual or reasonable foreseeable environment may be taken into account.”

Meanwhile, female prisoners in Bombay must be grateful that the bureaucratic procedure erroneously put in place has been rectified by the suo moto action of the Bombay High Court.

The High Court in this suo moto public interest litigation by a division bench consisting of two women judges, makes some path-breaking observations. Pointing out that women do not take the decision to terminate a pregnancy frivolously, the Court said: “These are decisions taken by responsible women who have few other options. They are women who would ideally have preferred to prevent an unwanted pregnancy, but were unable to do so. If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health.”

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While asserting a woman’s right to control her own body and make motherhood choices a part of her right to life and personal liberty under Article 21, the Court also said: “According to international human rights law, a person is vested with human rights only at birth; an unborn foetus is not an entity with human rights. The pregnancy takes place within the body of a woman and has profound effects on her health, mental well-being and life. Thus, how she wants to deal with this pregnancy must be a decision she and she alone can make.” This is a strongly progressive counter to the views of “pro-life” activists in the US.

While Bhatia sees the additional requirement in the Act for a doctor’s opinion in “good faith” as being at variance with the principle that a woman can make this decision on her own, the Bombay High Court has chosen to view the doctor’s opinion as an expert’s aid to the woman’s choice. Circumscribed by the current law, this is a harmonious interpretation of the law alongside a wider understanding of rights.

Meanwhile, female prisoners in Bombay must be grateful that the bureaucratic procedure erroneously put in place has been rectified by the suo moto action of the Bombay High Court.

Lead picture: (L-R) Bombay High Court; a silhouette portraying pregnant woman in jail. Illustration: Rajender Kumar

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