• Nyayshastram

Do women have the absolute right to termination of pregnancy or not?

Updated: Jun 2

Sherry Shukla, 2nd Year law student, National Law University, Nagpur

Arpit Lahoti, 3rd Year law student, National Law University, Nagpur

Abstract

The Constitution of India serves as the supreme law of the land and the phrase

“and to secure to all its citizens' liberty of thought, expression, belief, faith and worship”

in its Preamble gives an assurance that it is the duty of the State to maintain the same. Right to Life and Personal Liberty is an important facet of Article 21 enshrined in the Constitution. It embodies within it the right to exercise reproductive choices by women. It has been an important matter of concern as to whether women have an absolute right to termination of pregnancy or not and whether to give preference to rights of an unborn child whose status still has not been cleared. This article argues on the same line of reference. Firstly, it discusses the right of termination of pregnancy as enshrined in Article 21 of the Constitution of India; secondly, it focuses on whether the right to health as guaranteed by the State include this right of bodily autonomy or not and lastly throws light on the status of an unborn child that whether the preference of right to choice is to be given to a woman or the compelling state interest should prevail?


Introduction

Women’s right to make reproductive choices is a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India. Unwanted pregnancy is a risk factor for poor maternal mental health[1] and may have negative consequences for any existing children.[2] In the landmark judgment of KS Puttaswamy v. UOI[3] categorically, it was held that the exercise of reproductive choices is rooted within the constitutionally protected right to life and personal liberty under Article 21 of the Constitution. So, a woman cannot be denied the absolute right to termination of pregnancy.


Right to terminate Pregnancy comes under the ambit of Article 21 of the Constitution of India

The Article 21 of the Constitution of India talks about the term ‘personal liberty’, and as given in the case Suchita Srivastav v. Chandigarh Administration,[4] women’s right to make reproductive choices is also dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India. The objective behind Article 21 is to prevent any encroachment upon the personal liberty of a person in any manner. A good life presupposes life full of dignity, honour, health and welfare.[5] In the present ‘Welfare Philosophy’ it is for the State to ensure the essentials of life to all the citizens and if possible to non-citizens. The Supreme Court in the decision of Khedal Mazdoor Chetna Sangath v. State of MP[6] quoted the statement of Joseph Addison ‘Better to die ten thousand times than wound my honour’, and also posed a question ‘If dignity or honour vanishes, what remains of life?’[7] The Constitution of India guarantees rights to women to exercise their reproductive rights. In the Preamble, ‘we the people’ imposes that sovereignty of people must be respected and government cannot make unnecessary references. So, no one can be deprived of his personal liberty and dignity of every person should be maintained. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised.[8] Now, the decisional autonomy grasps such intimate personal choices as those governing reproduction and the ability to make decisions regarding one’s sexual or procreative nature. Also, it was stated that-

“woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy" [9]

Also, Section 11 of the Indian penal code, 1860 defines ‘Person’ in the same way as the General Clauses Act, 1882, which does not include Foetus any way. It has been stated that embryo, foetus and new born of the human species do not really become functioning human until humanised in the human socialisation process.ysical, mental and socio-economic consequences which far outweigh the consequences that ensue as a result of the termination of pregnancy.[11] So, a woman cannot be forced to continue with the pregnancy as it amounts to torture as defined as something that includes mental and psychological harassment.[12]

In the case of Meera Santosh Pal & Ors. v. UOI & Ors.[13], the women were allowed to go for termination of her pregnancy in order to protect her bodily integrity and similarly in many such cases the same line of jurisprudence have been followed.[14] Right to life under Article 21 through jurisprudence includes right to health, dignity, freedom from torture and ill-treatment and privacy.[15] Further, in the case of XYZ v. UOI[16], the word ‘life’ was defined as a quality of life, and it was associated with Section 5 of Medical Termination of Pregnancy Act, 1971. So, if a baby does not get quality life and the mother wants to terminate her pregnancy, she is allowed to do so.


In so far, the concept of ‘compelling state interest’ is concerned this cannot be stretched to a certain limit. There can also be no compelling State interest, in insisting upon continuance pregnancy where it would involve a grave injury to the mother’s physical or mental health.[17] The scheme of the Medical Termination of Pregnancy Act, even otherwise, places the interests of a mother on a higher pedestal than the interests of a prospective child. This is based on the logic that the foetus cannot have independent extrauterine existence and the life of the mother who independently exists, is entitled to greater consideration.[18] The MTP Act lays great emphasis on grave injury to not just the physical but also the mental health of the pregnant woman. Section 3(2)(b) of the MTP Act provides that if the continuance of the pregnancy would involve grave injury to the mental health of the pregnant woman, then, she can legitimately seek to terminate the same.[19] In fact, the expression ‘grave injury to her mental health’ has been liberally construed by the legislature. Section 3(3) of the MTP Act provides that in determining is whether the continuance of the pregnancy would involve such risk of injury to the health as is mentioned in Section 3(2) of the MTP Act, ‘account may be taken of the pregnant woman’s actual or reasonable and foreseeable environment’. This has greater nexus to the aspect of injury to mental health than injury to physical health.[20]

Also, Section 312 and 315 of the Indian Penal Code, 1860[21] exempt and decriminalise miscarriage, if undertaken in good faith for the purpose of saving the life of the mother. This contention is based upon the fact that the foetus cannot have an independent existence outside the womb of the mother, and the life of the mother who independently exists is entitled to greater protection.[22]


In the light of the above argument, the Supreme Court in Parmanand Katara v. UOI[23] held that there could be no second opinion that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man. Article 21 of the Constitution cast the obligation on the State to preserve life.[24]

The Convention on the Elimination of all Forms of Discrimination against Women, 1979 (CEDAW) is often also known as 'women’s bill of rights'. It is an important international human rights framework exclusively devoted to gender equality. It provides a complete definition of sex-based discrimination. The concept of equality in CEDAW is based on the principle of ‘Substantive equality’ between men and women. CEDAW states that the states parties condemn discrimination against women and will pursue means to eliminate discriminatory behaviours and laws. From the very nature of not recognising a right which only women needs, i.e. the right to reproductive choice is discriminatory in nature.


Right to Health of Woman is of primary concern for the State

India’s policy towards health has been traditionally identified by the provisions of primary healthcare as the States responsibility.[25] The Supreme Court has held that the right to health comes under the ambit of Article 21[26] of the Constitution of India. Article 38 of the Constitution imposes liability on the State to secure a social order for the promotion of the welfare of the people. Also, Article 42 ensures the health of the infant and mother by way of maternity benefit.[27] The Concept of Right to Health[28] and women’s Right to Reproductive Health[29] are laid down by the Supreme Court in different cases. These rights have been declared to come under the ambit of Article 21 of the Constitution of India. Also, in the case of CESC Ltd. v. Subhash Chandra Bose[30], Supreme Court favoured the international statutes and declared Right to Health as a fundamental right.

Further, if we look at the societal perspective in this age of modernisation, globalisation and Europeanization, the 'Personal liberty' is preferred over everything else. The decision regarding choosing what suits best for you is the liberal concept, and society is one’s personal choice and privacy rather than a direction or restriction. If we consider the foetus as a person under the Article 21 of the Constitution, then there will be a conflict between the right to privacy, choice and personal liberty of a mother and right to life of a foetus. From the interpretational perspective, the right to life of a foetus which is not even born yet cannot over-ride the mother’s right to privacy and personal liberty.


Whether Foetus enjoys the right to life?

The Supreme Court in the case of Maneka Gandhi v. UOI[31] said that “the procedure contemplated by Article 21 must be right and just and fair and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. Right to life enshrined in Article 21 means right to have something more than survival and not mere existence or animal existence. It includes all those aspects of life which go to make a man’s life meaningful, complete and worth living[32].”If we analyse the aspect laid down by the court that is 'mere existence', we can say that the foetus falls under the criteria of 'mere existence' which does not guarantee the right to life.

The foetus is apparently not able to sustain life in the extrauterine environment on its own, which makes it clear that it does not hold any capacity to be called as a person. Also, Section 3(42) of The General Clauses Act, 1882 defines a person, but the same is not in context to the object of the Constitution and also does not provide any status to the Foetus expressly or impliedly.[33]

Also, Section 11 of the Indian penal code, 1860 defines ‘Person’ in the same way as the General Clauses Act, 1882, which does not include Foetus any way. It has been stated that embryo, foetus and newborn of the human species do not really become functioning human until humanised in the human socialisation process.

According to Section 20 of The Hindu Succession Act, 1956[34] the interest of property can be vested in the unborn child but does not confer any right to the Foetus whereas it only recognises a right and states a condition ‘if the child is born alive’ then only the property can be transferred, but there’s no such thing stated that it has the right from the time of conception itself. The Foetus will only and only get a right once it is able to able to live apart from the uterine environment or we can say once it is born ‘alive’ not before that in any condition or circumstances.[35]

The Universal Declaration of Human Rights, 1948 states that

“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”[36]

The word ‘Born’ is specifically mentioned in the art. to clarify the thing that these rights are only conferred to the one who is born not the one who is still in the womb of his/her mother. The same argument was also reiterated in the session by the representative of France.[37]

All these provisions provide us with the fact that the term ‘person’ does not include the foetus, and hence, it cannot be held that they possess certain rights. Hence, the foetus does not enjoy any rights which include the right to life.

An unborn foetus is not an entity with human rights; it is vested with rights only at birth.[38] On the contrary, the pregnant woman undoubtedly has basic rights, especially the right to life and liberty, which are severely impacted if she is forced to carry an ‘unwanted’ pregnancy. The High Court, therefore, concluded that women alone have a say in how they want to deal with pregnancies and recognised their ‘right to autonomy and to decide what to do with their own bodies’.[39]

Conclusion

The crucial consideration is that a women’s bodily autonomy has to be respected, which includes within it right to privacy which is the cornerstone of life. This implies the fact that no restriction can be made on women’s right to exercise their reproductive choices. Where the termination of pregnancy itself does not involve risk to the physical life of the woman her right to choose and right to health, have to be respected and her rights and health conditions have to place on a high pedestal. So, the right to terminate their pregnancy should be vested with women only, and they should be given absolute control over their body and to decide whatever is good for their health.

[2] Diana Greene Foster, Effects of Carrying an Unwanted Pregnancy to Term on Women's Existing Children, 205 The Journal of Pediatrics (2019). [3] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. [4] Suchita Srivastav v. Chandigarh Administration, (2009) 9 SCC 1. [5] D D Basu, D D Basu Commentary on the Constitution of India, 675 (9th edn. 2016). [6] Khedal Mazdoor Chetna Sangath v. State of MP, 1994 SCC (6) 260. [7] Id at ¶ 16. [8] Khedal Mazdoor Chetna Sangath v. State of MP, 1994 SCC (6) 260. [9] Id at ¶ 37. [10] Laxmi Mandal v. Deen Dayal Harinagar Hospital, (2010) 172 DLT 9. [11] Debadyuti Banerjee and Ujwala Uppaluri, From Roe v. Wade to Fetal Pain Legislation: A Reflection of American Jurisprudence on the Indian Milieu of Liberalised Abortion Policies, (2009) 2 NUJS L Rev 637. [12] Mehmood Nayyar Azam v. State of Chattisgarh, (2012) 8 SCC 1. [13] Meera Santosh Pal & Ors. v. Union of India & Ors., (2017) 3 SCC 462. [14] X v. Union Of India, 2018 SCC OnLine Bom 3558. [15] Parmanand Katara v. Union Of India, (1995) 3 SCC 248. [16] XYZ v. Union of India, 2018 SCC OnLine Bom 13609. [17] XYZ v. Union of India, 2018 SCC OnLine Bom 13609 ¶ 19. [18] Id. at ¶ 17. [19] The Medical Termination of Pregnancy Act, 1971 (Act 34 of 1971), s. 3. [20] Id. [21] The Indian Penal Code, 1860 (Act 45 of 1860), ss. 312-315. [22] XYZ v. Union of India, 2018 SCC OnLine Bom. [23] Parmanand Katara v. Union of India, (1995) 3 SCC 248. [24] Id at ¶ 56. [25] Srabanti Mukherjee, A Study on Effectiveness of NRHM in Terms of Reach and Social Marketing Initiatives in Rural India, (2010). [26] The Constitution of India, art. 21. [27] The Constitution of India, art. 42. [28] Vincent Panikurlangara v. Union of India, (1987) 2 SCC 165. [29] Sandesh Bansal v. Union of India, 2011 SCC OnLine MP 948. [30] CESC Ltd. v. Subhash Chandra Bose, 1992 AIR 573. [31] Maneka Gandhi v. Union of India, 1978 SCC 1 248. [32] Id at ¶ 56. [33] The General Clauses Act, 1882 (Act 20 of 1882), s. 3(42). [34] The Hindu Succession Act, 1956 (Act 30 of 1956), s. 20. [35] Id. [36] UN General Assembly, United Declaration of Human Rights, 10 December 1948, 217 A (III), available at https:// www.refworld.org/docid/3ae6b3712c.html (accessed on 28 January 2020). [37] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1996, United Nations, Treaty Series, vol. 999, p. 171, available at https:// www.refworld.org/docid/3ae6b3aa0.html (accessed on 28 January 2020). [38] Bhattacharjee A M, Liberty of born v. Life of unborn, (1985) 2 SCC J-10. [39] X v. Union of India, (2017) 3 SCC 458.

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