Cannot Restrict Woman's Reproductive Choice : Kerala HC

Highlights:

• Kerala High Court allows a 23 year old woman to terminate her 26-week pregnancy
• A Woman's right to exercise her reproductive choice is a dimension of personal liberty

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Facts of the case

In a petition a 23-year-old MBA student sought termination of her pregnancy from consensual sex with her classmate. The petitioner claimed after realizing that she was pregnant, she was disturbed and moreover the classmate with whom she was in a relation had left the country for higher studies and she decided to terminate her pregnancy. But none of the hospitals she approached was ready to do the termination as it had crossed 24 weeks and hence, she approached the court. She told the court about detecting the pregnancy only in an ultrasound scan as she was suffering from polycystic ovarian disease. She also said that her partner with whom she was in a relationship had moved abroad for further studies. As a result, she petitioned the high court, fearing that her mental anguish would interfere with her education and ability to earn a living if she continued the pregnancy.

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MTP (Amendment) Act, 2021

Section 3 of the MTP (Amendment) Act 2021, states that where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that— (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health. However, the loophole here is that the Woman has crossed this limit of 24 weeks of pregnancy mentioned in section 3 of the MTP Act.

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Justice Arun’s statement

The Kerala high court has ruled that a woman’s reproductive choice cannot be restricted while allowing a 23-year-old woman to terminate her 26-week pregnancy due to medical complications. In his November 2 order, Justice Arun said the woman had an acute stress reaction, and that continuing the pregnancy would endanger her life.

“There can be no restriction on a woman’s right to exercise her reproductive choice to either procreate or to abstain from procreating,” stated Justice Arun.

The high court also said that a woman’s right to make reproductive choices is her personal liberty that falls under Article 21 of the Constitution, citing previous Supreme Court rulings.

Article 21 states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Are Unmarried Women Included in the MTP (Amendment) Act?

According to the Medical Termination Pregnancy Act, abortion has been permitted in India since 1971. The law was changed in 2021 to allow for abortions up to 24 weeks, up from the previous 20 weeks. These categories of women include married women who were divorced or bereaved, minors, rape victims, and mentally ill women. But because unmarried women were not included in the amendments, many people began to wonder why the legislation made distinctions based on marital status.

In the case of X(Appellant) v. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr. (Respondents), The petitioner ‘X’ argued in the high court that “Rule 3B of the Medical Termination of Pregnancy Rules, 2003 is violative of Article 14 of the Constitution of India (Right to Equality), inasmuch as it excludes an unmarried woman.” Justice Chandrachud, the then soon to be Chief Justice of India stated that “The artificial distinction between married and unmarried women cannot be sustained. Women must have autonomy to have free exercise of these rights”

Ruling

Furthermore, the order stated that “There can be no restriction on a woman’s right to exercise her reproductive choice to either procreate or to abstain from procreating. A woman’s right to make reproductive choice being a dimension of her personal liberty, as understood under Article 21 of the Constitution of India.”

“A careful scrutiny of the opinion shows that the petitioner is having an acute stress reaction and continuation of the pregnancy may cause an exacerbation of her medical distress which may entail risk to the petitioner's life,” the court said. After considering the opinion of the medical board that the continuation of the pregnancy may cause risk to the petitioner’s life, the court permitted her to terminate the pregnancy at a government hospital and directed the hospital concerned to constitute a medical team for conducting the procedure.

Source-Medindia