Published on: May 13, 2024 16:14 IST
By Ms. Yukti Kumar
Assistant Professor, RV University, Karnataka
ABSTRACT
The historic year of 1973 marked the beginning of abortion rights of women in United States, when the SCOTUS pronounced the judgment of Roe v. Wade. The holdings and relevancy of this judgement transcended the boundaries of contemporary jurisdictions and became one of the most referred and scrutinized judgment in the history of legal affairs. However, this transforming judgement was overturned in the recent years taking back the constitutional protection that stood for years.
The debate and discussion that ensued post this overturn prompted many jurisdictions to evaluate their own provisions pertaining to this crucial right to abortion. Though this event has occurred a little while back, however the recent developments through the judicial pronouncement in India in this regard has prompted to an evaluation that whether the evolution is positive or as regressive as our American counterparts.
This article reflects upon the significant changes that have been made in the provisions pertaining to the medical pregnancy in India by the Supreme Court in the recent years.
After the enforcement of The Medical Termination of Pregnancy (MTP) Act of 1971 (hereinafter referred as the MTP act) the apex court has played a pivotal role in shaping the enforcement and interpretation of provisions with respect to the constitutional right to abortion in the country. The MTP act initially legalized abortion under specific circumstances, reflecting the prevailing legal framework and societal attitudes at the time. However, the Supreme Court’s progressive rulings have been crucial in interpreting and expanding the scope of the MTP Act as societal perceptions and global jurisprudence on reproductive rights have evolved.
This write-up examines the Supreme Court’s interpretations of the MTP Act and how they align with the constitutional principles enshrined in the Indian Constitution. It traces the court’s recognition of the fundamental right to abortion as an extension of the constitutional rights to life, personal liberty, and privacy, thereby broadening the grounds for termination beyond the restrictive provisions of the MTP Act. This write-up also delves into the constitutional advancements in other jurisdictions, such as the United States (as mentioned above), Canada, and Europe, where other courts have influenced the abortion rights position in India. By drawing parallels and contrasts, the primary aims to provide a comprehensive understanding of the evolving jurisprudence on the medical termination of pregnancy from a global perspective.
In addition to the above-mentioned discussions, an analysis of the current challenges and debates surrounding abortion rights in India, including issues of marital rape, sex-selective abortions, and the rights of transgender individuals is also presented in this article. Towards the end, some suggestions and recommendations have been mentioned for further legal reforms and policy measures to ensure that reproductive rights are upheld and protected in accordance with constitutional principles and international human rights standards.
Introduction
In India, the right to medical termination of pregnancy has been a contentious and dynamic issue, reflecting the intricate interplay between legal frameworks, constitutional principles, and societal norms. The landmark MTP Act of 1971 legalized abortion under specific conditions, such as risk to the mother’s life, grave injury to physical or mental health, and cases of rape or contraceptive failure.[i] After the enforcement of the 1971 act, the legislation introduced slew of changes through the Medical Termination of Pregnancy Amendment Act of 2021.
The significant changes that has been brought forth by the legislature is that after the amendment unmarried women have also been covered and allows the abortion for up to twenty weeks based on the judgment of one medical practitioner. In addition to this, the legislature has also increased the upper-gestational limit from 20 to 24 weeks.
The Supreme Court has recognized the fundamental right to abortion as an extension of the constitutional rights to life, personal liberty, and privacy and has more often than not reiterated that it comes within the purview of right to reproductive autonomy of the women.[ii] This recognition has broadened the grounds for termination beyond the restrictive provisions of the MTP Act, acknowledging the autonomy, bodily integrity, and right of women to make informed choices about their reproductive health.
The development of abortion rights in India is part of a broader global trend, where courts in other jurisdictions, such as the United States, Canada, and Europe, have also played a crucial role in shaping the legal and public discourse on the issue through landmark rulings. Nevertheless, before delving deeper into the Indian context, it is essential to understand the historical perspective of abortion rights in the country.
India’s Abortion Rights Evolution: Legal and Judicial Progress
The Indian Supreme Court has played a pivotal role in shaping the country’s legal framework concerning abortion rights. Through a series of significant judgments, the court has progressively expanded the scope and interpretation of the MTP Act to align it with the core principles enshrined in the Indian Constitution.[iii]
- Judicial advancements in Indian regime related to Abortion rights
Establishing abortion as a fundamental right within the constitutional guarantees of life, personal liberty, and privacy marked a crucial milestone in legal evolution. In the case of Suchita Srivastava v. Chandigarh Administration (2009)[iv], the Supreme Court underscored that the right to reproductive choice emanates from the liberty safeguarded under Article 21 of the Constitution.[v] This landmark ruling affirmed that a woman’s abortion rights are intrinsic to her privacy and bodily autonomy, emphasizing that any restrictions on these rights must withstand constitutional scrutiny.
Other than this, several rulings increased the MTP Act’s jurisdiction. The Supreme Court acknowledged survivors of sexual assaults right to end their pregnancies after the MTP Act’s 20-week statutory limit in the 2017 case of Meera Santosh Pal v. Union of India.[vi] The court determined that giving sexual assault survivors a time limit would violate their fundamental rights since it would be equivalent to forcing them to carry the pregnancy which will be against the will of the pregnant woman.[vii]
In the 2016 case of X v. Principal Secretary, Health and Family Welfare Department,[viii] the Supreme Court made another noteworthy development by allowing a lady to terminate her pregnancy at 22 weeks owing to serious foetal abnormalities. This verdict found that the right to life under Article 21 includes the right to live with dignity and acknowledged the emotional distress and psychological trauma that a woman may experience in carrying a pregnancy to term in such circumstances. The Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act of 1994 outlawed sex-selective abortions, which were previously allowed under the MTP Act.[ix] The Supreme Court has also addressed this topic.
Even if the breadth of abortion rights in India has greatly increased as a result of these judicial developments, there are still discussions and difficulties. The problem of marital rape and its impact on the right to an abortion is still a challenge. Although termination in rape cases is permitted by the MTP Act, marital rape-which is not yet considered a criminal offence in India-is not specifically addressed by the law.[x] Concerns over the constitutional and legal ramifications for women seeking abortions in cases of marital rape have been raised by this.
The development in the abortion rights around the globe
India is not the only country where abortion rights have changed as a result of court rulings and constitutional interpretations. The legal environment around medical abortion has been significantly shaped by courts in a number of different jurisdictions, including the US, Canada, and Europe.
- United States of America (USA): The Due Process Clause of the 14th Amendment guarantees the right to an abortion, and the historic case of Roe v. Wade (1973)[xi] established this right as a basic one in the United States.[xii] With this ruling, abortion during the first trimester of pregnancy became lawful nationally. But Dobbs v. Jackson Women’s Health Organisation (2022)[xiii] overruled Roe v. Wade, leaving abortion regulation up to the states, resulting in a disorganised patchwork of state laws and prohibitions.[xiv]
- Canada: On the other hand, the Canadian Supreme Court has continuously upheld and increased access to abortion through its case law. The court overturned the abortion regulations in the landmark decision of R. v. Morgentaler (1988)[xv], therefore decriminalising abortion across the country.[xvi] The Canadian Charter of Rights and Freedoms guarantees women the right to security of person, and this decision was founded on the idea that limiting access to abortions was against that right.[xvii]
- European Union: Abortion rights in the European Union have also been significantly shaped by the European Court of Human Rights (ECtHR). The European Court of Human Rights (ECtHR) ruled in A, B, and C v. Ireland (2010)[xviii] that Ireland’s stringent abortion regulations were unconstitutional because they did not establish explicit legal guidelines for obtaining lawful abortions.[xix]
The global abortion rights landscape reflects the intricate interactions between social, legal, and ethical factors. The development of abortion laws has been influenced by court decisions and constitutional interpretations in several countries, including the US, Canada, and the EU. With decisions like Roe v. Wade and Dobbs v. Jackson Women’s Health Organisation, the US has witnessed profound changes; in contrast, Canada has maintained and increased access to abortion with important rulings like R. v. Morgentaler.
In a similar vein, the European Court of Human Rights has impacted abortion rights within the European Union by highlighting the significance of individual rights and legal clarity in cases such as A, B, and C v. Ireland. These legal advancements highlight the global abortion rights movement and ongoing discussion which are expected to rise with the changing times and conditions.
Way Forward/Suggestions
Even if the scope of abortion rights has been greatly increased by the Supreme Court of India and courts in other jurisdictions, more legislative changes and policy initiatives are still required to guarantee the full protection and progress of reproductive rights. Some of the suggestions that can be adopted by the authorities in the better application of women’s rights on abortion are mentioned below:
- Revisiting and amending the Medical Termination of Pregnancy Act (MTP Act) comprehensively: Despite the court’s progressive interpretations, the MTP Act remains somewhat outdated and restrictive. To align the Act with constitutionally recognized principles and international human rights norms, a thorough review and overhaul are imperative. This may involve delineating clear criteria for accessing abortion services, expanding grounds for termination, and removing gestational age constraints in cases involving fetal abnormalities or maternal health risks.
- Addressing the issue of marital rape and its impact on abortion rights: The absence of legislation criminalizing marital rape in India significantly undermines women’s reproductive autonomy.[xx] Urgent legislative measures are essential to criminalize marital rape and ensure that survivors can access abortion services without undue barriers or stigma.
- Ensuring equitable access to abortion services for marginalized populations: Disparities in access to abortion services persist among marginalized communities in India, particularly among low-income women, rural residents, and minority groups.[xxi] Efforts should focus on ensuring that these groups have affordable and accessible abortion services through awareness campaigns, financial assistance, and the expansion of abortion clinics.
- Upholding the reproductive rights of transgender individuals: India currently lacks clear legislation and policies granting abortion rights to the LGBTQ community.[xxii] It is imperative to establish explicit guidelines to ensure transgender individuals’ access to comprehensive reproductive healthcare services, including abortion services, free from prejudice or discrimination, building upon the Supreme Court’s recognition of their constitutional rights.
- Improving services for reproductive health and comprehensive sexuality education: For people to feel empowered to make decisions about their bodies and reproductive health, especially women and young people, comprehensive sexuality education and access to high-quality reproductive health services are essential. Making these kinds of investments can encourage prudent decision-making and help avoid unwanted pregnancies.
- Taking on societal stigma and advocating for a rights-based approach: To address societal stigma and misconceptions surrounding abortion, it is recommended to implement awareness campaigns, educational programs, and promote a rights-based approach to reproductive health.[xxiii] This approach can foster an environment where women can exercise their reproductive rights without fear of retribution or discrimination.
Towards the end:
The Indian Supreme Court’s progressive interpretation of the Medical Termination of Pregnancy Act (MTP Act) through significant rulings has significantly influenced the evolving landscape of medical termination of pregnancy in India. However, there are also some instances where the fore mentioned right to bodily autonomy was not afforded to the plaintiff by the apex court, consequently implying that the reproductive autonomy is still a far-fetched dream.
In the order pronounced on October, 2023 the court denied the woman to have medical termination at 27-week pregnancy despite her averring that she is not a fit mental condition to have another child. Towards the end, it can be said that indeed the transformation has occurred, however the complete evolution of the abortion rights is still pending with respect to Indian jurisdiction. The role played by the court, is without an iota of doubt, is remarkable however the right to reproductive autonomy still seems to be a pipedream.
Towards the conclusion, it can be said that this transformation is part of a broader global movement that advocates for and protects the freedom to procreate. Courts in various jurisdictions, including the US, Canada, and Europe, have also significantly contributed to the development of abortion rights and constitutional interpretations. Despite these advancements, there are ongoing debates and challenges, such as those related to transgender rights, sex-selective abortion, and marital rape. Addressing these issues requires a comprehensive approach that includes legislative amendments, legal reforms, and public awareness initiatives.
In summary, the evolution of abortion rights both domestically and internationally reflects the dynamic nature of constitutional interpretation and the judiciary’s role in advancing and defending fundamental rights. Legal and policy frameworks must be adaptable and responsive to ensure that reproductive rights are upheld and advanced in accordance with human rights norms and constitutional principles as societal attitudes evolve over time.
[i] Medical Termination of Pregnancy Act, 1971 in India, available at: https://www.drishtiias.com/daily-news-analysis/medical-termination-of-pregnancy-mtp-amendment-act-2021 (last visited on 01 March, 2024).
[ii] Supreme court of India recognised the right to abortion as a fundamental right, available at: https://cjp.org.in/bodily-autonomy-safe-abortion-a-right-under-article-21/ (last visited on 01 April, 2024).
[iii] supra note, 3.
[iv] (2009) 9 SCC 1
[v] Judgement of Suchita Srivastava, available at: http://privacylibrary.ccgnlud.org/case/suchita-srivastava-vs-chandigarh-administration#:~:text=Case%20Brief&text=The%20Supreme%20Court%20stayed%20the,of%20her%20right%20to%20privacy. (last visited on 01 April, 2024).
[vi] (2017) 3 SCC 462
[vii] The abortion rights of women recognised in the Indian judgement, available at: https://ksandk.com/litigation/legal-abortion-and-reproductive-rights-of-women-in-india/#:~:text=In%20Meera%20Santosh%20Pal%20v,reproductive%20autonomy%20and%20bodily%20integrity. (last visited on 02 April, 2024).
[viii] 2022 SCC OnLine SC 1321
[ix] The act that out-lawed sex selective abortions in India, available at: https://www.drishtiias.com/daily-updates/daily-news-analysis/pre-conception-and-pre-natal-diagnostic-techniques-pcpndt-act-1994 (last visited on 02 April, 2024).
[x] Marital rape is not a criminal offence in India, available at: https://timesofindia.indiatimes.com/readersblog/thoughts-on-marital-rape/marital-rape-a-heinous-crime-56562/ (last visited on 02 April, 2024).
[xi] 410 U.S. 113 (1973)
[xii] The due process clause of 14th Amendment in USA, available at: https://constitutioncenter.org/the-constitution/articles/amendment-xiv/clauses/701 (last visited on 02 April, 2024).
[xiii] 597 U.S. 215 (2022)
[xiv] Judgement of Dobbs v. Jacksons, available at: https://reproductiverights.org/case/scotus-mississippi-abortion-ban/ (last visited on 03 April, 2024).
[xv] [1988] 1 SCR 30
[xvi] The landmark Canadian case, available at: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1053/index.do (last visited on 02 April, 2024).
[xvii] The Canadian Charter of Rights and Freedoms, available at: https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/ (last visited on 03 April, 2024).
[xviii] [2010] ECHR 2032
[xix] The landmark case of European Union on abortion rights, available at: http://privacylibrary.ccgnlud.org/case/case-of-a-b-c-vs-ireland (last visited on 03 April, 2024).
[xx] supra note, 10.
[xxi] The lack of facilities in relation with the abortion in India, available at: https://www.financialexpress.com/healthcare/news-healthcare/abortion-seekers-in-india-battle-social-stigma-poor-medical-facilities-despite-its-legal-status/3276184/ (last visited on 03 April, 2024).
[xxii] Transgender’s rights concerning abortion in India, available at: https://indianexpress.com/article/lifestyle/indias-abortion-law-progressive-but-excludes-trans-men-transgender-rights-queer-lgbtqai-8056577/ (last visited on 03 April, 2024).
[xxiii] Awareness campaigns in weaker sections of the society concerning reproductive health in India, available at: https://www.financialexpress.com/healthcare/wellness/abortion-rights-are-women-aware-of-legal-status-of-mtp-in-india/3024932/ (last visited on 03 April, 2024).