Tuesday, January 31, 2023

The Unborn Child

The overturning of Roe vs Wade by the United States Supreme Court has meant that the Constitutional right to abortion has been taken away; a severe blow to a woman’s ability to make decisions about her own body. The debate raging over this topic begs the question: What rights do women have in this country with respect to pregnancy and beyond?

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By Shaan Katari Libby

In India, the reproductive choice of a woman has been recognised as a fundamental right by a three-judge bench of the Supreme Court in Suchita Srivastava & Anr vs Chandigarh Administration 2009, where it was observed that “Indian law allows for abortion only if the specified conditions are met”. The Medical Termination of Pregnancy Act, 1971, was modelled on the Abortion Act, 1967, of the United Kingdom. The legislative intent was to provide a qualified “right to abortion” and the termination of a pregnancy has never been recognised as a normal recourse.

Importantly, a woman’s right to make reproductive choices is also a dimension of “personal liberty” under Article 21 of the Constitution of India. Reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. Reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to raise children. 

However, the Court went on to stipulate: “in the case of pregnant women there is also a ‘compelling state interest’ in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the provisions of the MTP Act, 1971, can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices.”

 Section 8 of the Act does come as welcome relief to medical practitioners in this area. The Section says: “Protection of action taken in good faith—No suit for other legal proceedings shall lie against any registered medical practitioner for any damage caused, likely to be caused by anything which is in good faith done or intended to be done under this Act.” 

Terminations are permitted when there is mental injury or anguish. In the case of ABC, D/o Lt. Tilak Ban Goswami vs The State of Chhattisgarh, it was held that the explanation clause of Section 3 of the 1971 Act takes within its ambit not only the physical injury, but also mental injury and anguish. It is obvious that if the victim is subjected to rape and if she is forced to give birth to a child in the social scenario, she has to face a lifetime anguish, apart from the fact that the child who is born will also have to face the disdain of society. Under the circumstances, it is directed that the petitioner shall be entitled to medical termination of pregnancy.

Similarly, in Misc.19689 of 2021 Justices Yadav and Sinha permitted the termination of a 14-year-old rape victim’s pregnancy at just over 20 weeks. The logic was that this unwanted pregnancy is a “constant cause of trauma and mental torture” and the Court drew a presumption that it would be a grave injury to her mental health.

The Nagpur bench of the Bombay High Court earlier this year (WP No.2823 of 2022) once again highlighted the principle that where any pregnancy is alleged by any pregnant woman to have been caused by rape, the anguish caused by such pregnancy is presumed to constitute a grave injury to the mental health of the pregnant woman.

In WP(C) NO. 16044 of 2021, the Kerala High Court permitted the termination of a foetus suffering from Klinefelter syndrome. In this case, the wife (first petitioner) was herself suffering from mild mental retardation, visual disturbances, seizures and weaknesses of the left lower limb with a permanent disability of 55%. Thus, although it was stated in the medical opinion that the Klinefelter syndrome is not a life-threatening disorder, analysed in the light of the provision Section 3(3) of the Act, it was held that the continuance of the pregnancy of the first petitioner would involve injury to the physical and mental health of the first petitioner, and taking into account the fact, the permanent medical board consisting of eight expert doctors had recommended medical termination. The writ petition was allowed and the first petitioner was permitted to undergo the procedure for termination of the pregnancy.

The courts have in the judgments in ABC vs Union of India & others: 2020(4) KLT 279, Ms. X vs State of Kerala and Others: 2016 ordered termination of pregnancy exceeding 20 weeks in the case of rape victims who were not mentally prepared to deliver the child, in order to save their lives. The apex court has in the judgment in AV Union of India: (2018)4 SCC 75 permitted termination in a case where the gestational age was 25-26 weeks. In Murugan Nayakkar vs Union of India: 2017 SCC online SC 1092 allowed termination of pregnancy in the case of a 13-year-old child and in Sarmishtha Chakrabortty vs Union of India: (2018) 13 SCC 339, permitted termination of pregnancy when the gestational age was 26 weeks, in view of the recommendation of the medical board and the medical report revealing the threat of severe mental injury to the woman and multiple complex problems to the child, if born alive, involving complex cardiac corrective surgery stage by stage after birth.

The law is that the pregnancy of a minor girl cannot be terminated without the consent in writing of her guardian. In W.P.(MD) No.659 of 2021, Justice Swaminathan of the Madurai bench of the Madras High Court was set to overrule the minor’s wish to keep the child, and instead go with the wishes of her guardian—the uncle: “The minor is aged 15 years. She is not in a position to maintain herself.” Her pregnancy constituted an offence by her partner under Section 6 of the Protection of Children from Sexual Offences Act, 2012. The judge went on to reason: “If a choice is given to the foetus now in the womb of the minor, it would definitely proclaim that it would not wish to be born.” Fortunately, by this point, the girl herself had agreed to terminate, so the decision to abort was not made based on these musings.

Where the 24-week mark has been passed, the Courts have varied in their decisions. In W.P. No. 231 Of 2019 Ruma Imran @ Shadab Sahab & Anr. vs The State of West Bengal & Ors, a foetus could be aborted at 25 weeks gestation because it was found to have gross congenital anomaly (Hydrocephalus) which is not compatible with normal and healthy life after birth. In Asthha Pande vs State of MP, it was held by Justice Vivek Rusia that the petitioner was not entitled to terminate her pregnancy. The reasoning was that the petitioner (a college student) and her boyfriend had broken up, but there was always a possibility of reassociation while the termination of pregnancy is irreversible. Had it been prior to the expiry of 22-24 weeks, the medical practitioner would have terminated the pregnancy or the court would have permitted termination.  

In the High Court of Kerala at Ernakulam, Justice PV Asha found against petitioner/s Akhila Kurian and Kurian Jose who had sought to terminate their foetus which had serious developmental brain anomalies. However, this was at week 33, and there was the possibility of survival of the baby and excessive bleeding during delivery. Though they were willing to take a risk, the judge was of the view that the stage at which permission could be granted had been crossed and the writ petition was dismissed. In another judgment involving the state of Orissa, a rape victim was required to carry a pregnancy as it was already 26 weeks in. The police had not directed the victim and her father correctly regarding the procedure to be followed. Harsh as this is, one is aware that adoption is always an option if they wish to give up the baby. 

More recently, however, unlike the decision made by Justice Asha, Justice Jyoti Singh of the Delhi High Court in December 2021 permitted a termination of pregnancy at 28 weeks because the foetus suffered from a rare congenital heart disease, which would lead to a “substantial foetal abnormality”, with attendant complications and risks, resulting in a deleterious impact on the mental health of the petitioner. Also, reference was made to reproductive choices and a woman’s “personal liberty” enshrined in Article 21 of the Constitution and thus the petitioner’s inherent freedom to make this decision. This is a big step away from some of the previous judgments discussed.

Their rights to abort aside, pregnant women in India face severe obstacles, including access to healthcare, nutrition and the physical rest required. They have in theory got maternity benefits—which became a legal entitlement in 2013—for all Indian women (except those already receiving similar benefits as regular government employees or under other laws) under the National Food Security Act (NFSA), Section 4 which says: “. . . every pregnant and lactating mother shall be entitled to [nutritious food and] maternity benefit of not less than rupees six thousand, in such instalments as may be prescribed by the Central Government”.

In practice, however, only a small fraction of applicants can avail of the newly implemented Pradhan Mantri Matru Vandana Yojana (PMMVY) Scheme, which has gone against the spirit of the Act and provides money only to the first living child—India has no one-child policy—and the application form to apply is 23 pages long, reliant on Aaadhar and generally extremely cumbersome for a largely illiterate population. As pointed out by Drez, Khera and Somanchi in their article on the subject, most pregnant women in India receive substandard healthcare, little or no rest, and a poor diet. Some states like Odisha’s Mamata scheme and Tamil Nadu have extended maternity benefits to two children and raised the benefits to Rs 14,000 per child coupled with in-kind support worth Rs 4,000 in the form of a “maternity nutrition kit”.

As for maternity leave, The Maternity Benefit (Amendment) Act, 2017, says the women who have completed 80 days in the 12 months immediately preceding the date of her expected delivery are entitled to maternity leave for a upto 26 weeks of which not more than eight weeks shall precede the expected date of delivery. An employer has to intimate women working there about the maternity benefits provided by the organization in writing or electronically at the time of her appointment regarding every benefit available to them under Section 11A (2) of the Maternity Benefit Act. An employer cannot terminate a woman after learning about her pregnancy, but in cases of gross misconduct, the employer can apply the company disciplinary policy. 

As of 2017, every establishment having 50 or more employees have to provide a crèche with four visits a day to crèche by the women, including an interval for rest. As regards work from home, the employer may allow her to do so after the maternity leave as the employer and the woman may mutually agree. 

Pregnancy and subsequent decisions are fraught with uncertainty, but Indian women are nothing if not resilient and stoic; life goes on. 

—The writer is a barrister-at-law, Honourable Society of Lincoln’s Inn, UK, and a leading advocate in Chennai. With research assistance by Jumanah Kader

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