Print Friendly, PDF & Email

EDITORIAL ANALYSIS : Impacting a woman’s freedom to reproductive choices

 

Source: The Hindu

  • Prelims: Functions and responsibilities of union and states, schemes for vulnerable sections( fundamental rights, abortion laws)
  • Mains GS Paper I and II: Role of women and women organizations, schemes for vulnerable sections. Fundamental rights.

ARTICLE HIGHLIGHTS

  • In X vs Union of India, the Supreme Court declined permission to a woman who was seeking to terminate a 26 week-long pregnancy.
    • It held that the woman’s case fell outside the scope of the Medical Termination of Pregnancy (MTP) Act, 1971

 

INSIGHTS ON THE ISSUE

Context

Abortion:

It is defined as the termination of pregnancy by various methods, including medical surgery before the fetus is able to sustain independent life.

      

MTP (Amendment) Act, 2021:

  • Termination due to Failure of Contraceptive Method or Device: Under the Act, a pregnancy may be terminated up to 20 weeks by a married woman in the case of failure of contraceptive method or device.
  • Unmarried women: It allows unmarried women to also terminate a pregnancy for this reason.
  • Opinion Needed for Termination of Pregnancy:
    • Opinion of one Registered Medical Practitioner (RMP) for termination of pregnancy up to 20 weeks of gestation.
    • Opinion of two RMPs for termination of pregnancy of 20-24 weeks of gestation.
    • Opinion of the State-level medical board is essential for a pregnancy to be terminated after 24 weeks in case of substantial fetal abnormalities.
  • Upper Gestation Limit for Special Categories: Increases the upper gestation limit from 20 to 24 weeks for special categories of women, including survivors of rape, victims of incest and other vulnerable women (differently abled women, minors, among others).
  • Confidentiality: The “name and other particulars of a woman whose pregnancy has been terminated shall not be revealed”, except to a person authorized in any law that is currently in force.

 

What court said:

  • The statute permitted the termination of pregnancy beyond 24 weeks only in cases where:
    • The fetus exhibited substantial abnormality
    • Where the woman’s life was under direct threat.
  • Here, since doctors would have to terminate a “viable fetus”, the Court rejected the plea to exercise its extraordinary powers.

 

Issues with the Judgement:

  • Court’s failure to ask itself what ought to be seen as central questions to resolving the dispute:
    • Does a fetus enjoy an autonomous moral status?
    • Does it have legal standing?
    • Is it capable of exercising constitutional rights?
  • The judgment places the rights of a fetus above that of the rights of a pregnant woman to her privacy and dignity.
  • The Court fails to examine whether the MTP Act is merely an enabling legislation.
    • Does the statute facilitate the exercise of a fundamental right?
    • Do its exemptions constitute a conferral of rights in and by themselves?
  • If the right to freely make reproductive choices is fundamental,
    • The Court ought to scarcely feel injuncted from issuing directions beyond the MTP Act’s remit.
  • The petitioner became aware of her pregnancy only 20 weeks in, as she had lactational amenorrhea
    • Amenorrhea: A condition in which women who are breastfeeding are also amenorrhoeic, that is not menstruating.

Petitioner’s plea’s:

●      Petitioner was suffering from postpartum depression and her mental condition did not allow her to raise another child

●      Her husband, she said, was the only earning member of the family and they could ill-afford to care for a third child.

Court’s response:

  • Justice Kohli said her “judicial conscience” did not allow her to permit an abortion.
  • Justice Nagarathna held that the petitioner’s decision must be respected.
    • The woman’s choice was paramount, and her right to reproductive health included a right to an abortion.
    • A fetus is dependent on the mother and cannot be recognised as an individual personality from that of its mother as its very existence is owed to the mother”.

Medical board:

  • It confirmed that the fetus was viable and had no abnormalities
    • The medication that the petitioner was on would not in any way endanger the pregnancy.

Large bench Ruling:

  • CJI:In case of an unwanted or incidental pregnancy, the burden invariably falls on the pregnant woman affecting her mental and physical health.
  • Article 21 recognizes and protects the right of a woman to undergo termination of pregnancy if her mental or physical health is at stake.
  • It is the woman alone who has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion.”
  • A woman’s right to make reproductive choices without undue interference from the State sprang out of the very idea of human dignity.
  • The judgment’s implicit assertion that fetuses have constitutional rights.

Way Forward

  • When a fetus becomes viable, and is capable of surviving outside the mother’s uterus, the woman’s right to choose stands extinguished, barring circumstances where the specific conditions outlined in the MTP Act are met.
  • The MTP Act must be seen as an enabling legislation, not as a law that confers a liberty as much as a law that seeks to provide a means to enforcing a fundamental right.
  • The guarantees of Articles 14 and 21 of the Constitution — the rights to equal protection and life — are conferred on persons, and the Constitution decidedly does not award personhood to a fetus.
  • As Justice Nagarathna held, there is no place within our constitutional structure to see a fetus as anything but dependent on the mother.
    • To see it as a separate, distinct personality would be tantamount to conferring a set of rights on it that the Constitution grants to no other class of person.
  • It would efface altogether a jurisprudence that grants primacy to a woman’s freedom to make reproductive choices — a right that is intrinsic in Articles 14 and 21 of the Constitution.

QUESTION FOR PRACTICE

Women’s movement in India has not addressed the issues of women of lower social strata.’ Substantiate your view.(UPSC 2018) (200 WORDS, 10 MARKS)