JUDICIAL CONUNDRUM REGARDING TERMINATION OF PREGNANCY

BY AKSHAY SHARMA1 AND LAVANYA PATHAK2

ABSTRACT

Termination of Pregnancy is an issue which covers within its ambit every aspect including societal values,
law, morality, State interest and the Fundamental Rights. Law is dynamic in nature and with change in
time, the law must adapt to same, otherwise will became redundant. The Judiciary in this case is trying its
best to cover up the failure of act and further incorporating the right to privacy with right to abortion.
However, the such endeavor of judiciary cannot be succeeded in long run and legislature has to adopt
itself to changes. The termination of pregnancy beyond twenty weeks has to decided keeping in mind
various factors and the conundrum needs to come to an end. The paper will address the lacuna in act,
furthermore, elucidate the response the judiciary and will suggest the future course of action.

Introduction

Abortion is an issue overshadowed and shrugged with glaring questions of morality, infanticide, suicide,
ethics, religious beliefs and women's rights. To what amplitude, abortion should be permitted,
encouraged, restricted or repressed is a social issue that has effectively divided theologians,
3
philosophers, legislators and general mass. Abortion will continue to exist as long as women face
unwanted pregnancies and unwanted pregnancies would persist unless and until women are empowered
to determine their sexual behavior and the right to decide about own self.

Whose life is more important, whether of woman or of fetus who is yet to come to this world. Proponents
of abortion states that when it is woman who decide to conceive, then it should be only sole prerogative of
that woman whether to terminate the same or not, this argument seems to be apt with regards to
administrative law that those who can appoint can terminate as well but however it can be juxtaposed in
the matters concerning life is an issue of great importance. Some of the several facets of the question, by
their very nature, would fail to turn up with any one answer under the scrutiny of any court — normative
questions of when life truly begins, whose life is more valuable and the relative “sanctity” of human life,
potential and existence.

This paper will dwell upon the outdated nature of Medical Termination of Pregnancy Act, 1971 by
comparing it with that of other countries. Furthermore, will also address that how the act failed to consider
the autonomy of women and further wasn‟t flexible enough to cope with change in time. Lastly, the author
will suggest changes to deal with the conundrum caused by this act.

1
IX Semester, BALLB(Hons), National University for Study and Research in Law, Ranchi
2
VII Semester, BALLB(Hons), National University for Study and Research in Law, Ranchi
3
Subhash Chandra Singh, Faculty of Law, M.G. Kashi Bidyapeeth, “Right to Abortion: A New Agenda”, AIR 1997 Jour 129

Published in Articles section of www.manupatra.com

 ABORTION LAWS OF OTHER COUNTRIES

 UNITED STATES OF AMERICA

The official report of the U.S. Senate Judiciary Committee issued in 1983 after extensive hearings on the
Human Life Amendment, stated:

“Thus, the [Judiciary] Committee observes that no significant legal barriers of any kind whatsoever exist
today in the United States for a woman to obtain an abortion for any reason during any stage of her
4
pregnancy.”
5
The US Supreme Court decision in Jane Roe v. Henry Wade, in which the Court upheld the right of a
married woman to terminate her pregnancy as a part of the right of personal privacy. The following
observations of Justice Mathew, who delivered the judgment of the Court do indicate a constitutional
recognition of the right to be let alone :

“There can be no doubt that the makers of our Constitution wanted to ensure conditions
favourable to the pursuit of happiness. They certainly realized as Brandeis, J. said in his dissent in
6
Olmstead v. United States, the significance of man‟s spiritual nature, of his feelings and of his intellect
and that only a part of the pain, pleasure, satisfaction of life can be found in material things and therefore,
they must be deemed to have conferred upon the individual as against the government a sphere where
he should be let alone”.

 COMMON LAW COUNTRIES

A common law country like U.K. allowed termination of a pregnancy at any time if there was a significant
7
risk of the baby being born seriously disabled, and it is solely upon the opinion of the doctors, if they in
8
good faith think that continuance of pregnancy poses a risk to the life of the woman. In Australia, abortion
9 10
law is a State subject, is legal and there is no need for spousal consent nor counselling. In Canada,
11 12
France, and South Africa, there is absolutely no legal restriction and abortion is the sole prerogative of
th
the woman. In Denmark also, after the 12 week of pregnancy has elapsed, a woman domiciled in there
may be granted authorization for an abortion in case there is a danger that, on account of a hereditary

4
Committee on the Judiciary Report, U.S. Senate, on Senate Joint Resolution 3, 98th Congress, 98-149, June 7, 1983, ¶6.
5
410 US 113 (1973)
6
277 US 438 (1928)
7
Section 1(1)(d), United Kingdom's Abortion Act, 1967.
8
Ibid, Sec. 1(1).
9
R. v. Davidson, 1969 VR 667; R. v. Wald, (1971) 3 DCR 25; R. v. Bayliss & Cullen, (1986) 9 QLR 8 (Aust)
10
Morgentaler v. R., (1976) 1 SCR 616; R. v. Morgentaler, (1988) 1 SCR 30
11
The Act that decriminalised abortion is the Veil Law of 1975
12
The Act that authorises termination of pregnancy on demand is Choice on Termination of Pregnancy Act, 1996
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condition or of an injury or disease during embryonic or fetus life, the child will be affected by a serious
13
physician or mental disorder.

 SPECIAL CASE OF IRELAND

The death of an Indian Origin women named Ms. Savita Halappanavar, in 2012 at age 31 from
septicemia, an infection she contracted after she was denied an abortion during a miscarriage, set off
14
outrage across the country and gave momentum to a growing call for change. decisively to repeal one
of the world‟s more restrictive abortion bans, sweeping aside generations of conservative patriarchy and
15
dealing the latest in a series of stinging rebukes to the Roman Catholic Church.

BODILY AUTONOMY OF W OMAN

16
In the case of Sharda v. Dharampal, the Hon‟ble Supreme Court, while discussing about the necessity
of a medical examination to determine a particular case held that;

“If the respondent avoids such medical examination on the ground that it violates his/her right to
privacy or for that matter right to personal liberty as enshrined under Article 21 of the Constitution of India,
then it may in most of such cases become impossible to arrive at a conclusion. It may render the very
grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specifically
conferred by Article 21 of the Constitution of India and with the extensive interpretation of the phrase
“personal liberty” this right has been read into Article 21, it cannot be treated as an absolute right…”

The above stated judgment clearly shows that the till the year 2003 the Women right to privacy was not
explicitly recognized and thus further her say in medical examination or in terminating pregnancy was
also denied.
17
Women are granted sexual autonomy as a part of their privacy , and this needs to commensurate with a
18
right to decide to reproduce. There cannot be a justification for forced pregnancy as it is a modified form
of servitude in which the body of the woman is owned by others for sexual and reproductive purposes and
in many ways resembles the slavery system of the earliest times for new roles and responsibilities of
irrevocable nature are attached with the woman as mother and this continues for the better years of her
19
life. abortion should be available for any woman without insolent inquisition or ruinous financial charges,

13
Ch. 25, Denmark Health Act, 2005.
14
NY Times, How Savita Halappanavar‟s Death Spurred Ireland‟s Abortion Rights Campaign, May 27, 2018.
https://www.nytimes.com/2018/05/27/world/europe/savita-halappanavar-ireland-abortion.html (last accessed on 01/07/2019)
15
NY Times , Ireland Votes to End Abortion Ban, in Rebuke to Catholic Conservatism, May 26, 2018,
https://www.nytimes.com/2018/05/26/world/europe/ireland-abortion-yes.html?module=inline (last accessed on 01/07/2019)
16
(2003) 4 SCC 493
17
State of Maharashtra v. Madhukar Narayan Mardikar, (1991) 1 SCC 57.
18
Henry Roe v. Wade, 35 L Ed 2d 147
19
Subhash Chandra Singh, Faculty of Law, M.G. Kashi Bidyapeeth, “Right to Abortion : A New Agenda”, AIR 1997 Jour 129
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 20
for their own bodies are their own. a woman has a right to conceive and it was unequivocally affirmed in
21
the Madras High Court decision.
22
In the case of Suchita Srivastava v. Chandigarh Administration, it was envisaged by the Court that,

“There is no doubt that a women‟s right to make reproductive choices is also a dimension of
“personal liberty” as understood under Art. 21 of the Constitution of Indiana. It is important to recognize
that reproductive choices can be exercised to procreate as well as to abstain from procreating. The
crucial consideration is that a women‟s right to privacy, dignity and bodily integrity should be respected.”

The most recent and welcoming development regarding the women choice of pregnancy is the judgement
of the Hon‟ble Supreme Court decided on 28.10.2017, Justice Chouhan stated that;

“Nobody can interfere in the personal decision of the wife to carry on or abort her pregnancy
which may be due to the reason that an effort to live together under one roof has failed. A woman is not a
machine in which raw material is put and a finished product comes out. She should be mentally prepared
to conceive, continue the same and give birth to a child. The unwanted pregnancy would naturally affect
23
the mental health of the pregnant woman...”

COMPELLING STATE INTEREST

24 25
The decision laid in Roe, has been followed in a plethora of cases. By this rationale, the State would
get a compelling interest after the stage of viability which begins after twentieth week to preserve the life
for the societal benefit augmented by the fact that abortion after such stage is fatal to the life of the
woman. The fetus after the stage of viability is not a prenatal life but a potential life that could be
beneficial to the society. The fetus is not indispensably dependent on its mother's body and stands a fair
26
chance of survival upon delivery albeit with suitable aids at the premature stage.

The operation of the Art. 21, insofar as it imposes a procedural limitation on law that affects personal
27
liberty, commences as soon as interference with personal liberty commences and ends only when that
interference ceases. Also, in Art. 21 of the Constitution, it is trite law that justice should not only be done
28
but is should be seen to have been done.

20
Stella Brown, “Review of the Abortion Problem”, 128 Journal of the American Medical Assn. 472 (1945).
21
V. Krishnan v. G. Rajan, (1994) 1 LW (Cri) 16 (Mad)
22
(2009) 9 SCC 1, ¶ 22.
23
Live Law, SC Upholds Punjab and Haryana HC‟s Ruling That A Woman Does Not Need Her Husband‟s Consent To Abort...
/http://www.livelaw.in/sc-upholds-punjab-haryana-hcs-ruling-woman-not-need-husbands-consent-abort/, (last accessed on
01/07/2019)
24
410 US 113 (1973
25
Doe v. Bolton, 35 L Ed 2d 201: 410 US 179 (1972); H.L. v. Matheson, 67 L Ed 2d 388: 450 US 398 (1981); City of Akron v. Akron
Center for Reproductive Health, 76 L Ed 2d 687: 462 US 416 (1983); Planned Parenthood v. Danforth, 49 L Ed 2d 788 : 428 US 52;
Doe v. Smith, 100 L Ed 2d 909 : 486 US 1308 (1988).]
26
Prashanth S.J., “Right to Life of Foetus”, AIR 2005 Jour 209.
27
Sheela Barse v. State of Maharashtra, AIR 1983 SC 378
28
Maneka Gandhi v. Union of India, AIR 1978 SC 597, ¶ 6.
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 LIFE OF FETUS

As far as the life of fetus is concerned, the Himachal Pradesh High Court has taken the view that the fetus
is a part of the body of the deceased and no separate compensation is admissible on the ground of loss
29
of fetus. Also, The Bombay High Court, held that unborn child in the womb is not a person within the
30
meaning of Sections 165 and 166 of the Motor Vehicles Act . Different claim petitions were filed for the
death of the pre-pregnant woman with 28 weeks old fetus in her womb out of which one was rejected
31
holding that unborn child in the womb will not be included in the word “person”.

RECOGNITION OF RIGHT TO PRIVACY AS A FUNDAMENTAL RIGHT

The statutory recognition of the right is relatable to the constitutional right to make reproductive choices
which has been held to be an ingredient of personal liberty under Article 21. The Court deduced the
rd
existence of such a right from a woman‟s right to privacy, dignity and bodily integrity. Therefore, on 23
August, 2017, the 9-Judge Constitution Bench of the Hon‟ble Supreme Court recognized the
32
Fundamental right to privacy in the case of Justice K.S. Puttuswamy (Retd.) v. Union of India, and held
that,

“Over the last four decades, our constitutional jurisprudence has recognised the inseparable
relationship between protection of life and liberty with dignity. Dignity as a constitutional value finds
expression in the Preamble. The right to privacy is an element of human dignity. The sanctity of privacy
lies in its functional relationship with dignity. Privacy ensures that a human being can lead a life of dignity
by securing the inner recesses of the human personality from unwanted intrusion. Privacy recognises the
autonomy of the individual and the right of every person to make essential choices which affect the
course of life.

INDIAN CONSTITUTIONAL COURT TRENDS TOWARDS TERMINATION OF PREGNANCY

The attitude of the Indian Constitutional Court keeps changing as to whether to allow the pregnancy
33
beyond the statuary limit of twenty (20) weeks as stated under Sec.3 of the MRTP Act. There is no

29
Rakesh Kumar v. Prem Lal, 1996 A.C.J 980, ¶23.
30
Motor Vehicles Act of Indiana, Pari Materia to Motor Vehicles Act of India (Herein after referred as MVA)
31
Margappa Shethappa Vadar v. Proctor and Gamble India, 2008 ACJ 2802, ¶4.
32
WP(Civil) no. 494 of 2012, Supreme Court of India, decided on 23.08.2017
33
Sec. 3-(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not
be guilty of any offence under that code or under any other law for the time being in force, if any pregnancy is terminated by him in
accordance with the provisions of this Act.
(2) Subject to the provisions of sub- section (4), a pregnancy may be terminated by a registered medical practitioner,-
(a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered
medical practitioners are, of 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; or
(ii) there is a substantial risk that if the child were born, it would be suffer form such physical or mental abnormalities as to
be seriously handicapped.
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statutory backing either under the MRTP Act or under the Constitution of India which empowers the Court
34
to allow the pregnancy beyond the period of twenty (20) weeks. There is one Art.142, which can be
invoked by the Supreme Court in the larger interest of the justice, astonishingly it is surprising that the
Hon‟ble Court didn‟t use the same in any of its judgments.

 ALLOWING TERMINATION OF PREGNANCY BEYOND TWENTY (20) WEEKS

35
In the case of Ms. Z v. State of Bihar, the Hon‟ble Supreme Court by invoking the Doctrine of “Best
Interest” and “Parens patriae”, allowing to terminate the pregnancy of a 24-week-old fetus and held that;

“As evident from its literal description, the “best interests” test requires the Court to ascertain the
course of action which would serve the best interests of the person in question. In the present setting this
means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the
pregnancy as well as social circumstances faced by the victim. It is important to note that the Court‟s
decision should be guided by the interests of the victim alone and not those of the other stakeholders
such as guardians or the society in general. It is evident that the woman in question will need care and
assistance which will in turn entail some costs. However, that cannot be a ground for denying the
exercise of reproductive rights.”
36
Also, in the very recent case of Ms. Z v. State of Himachal Pradesh, (petitioner name not disclosed by
th
Court) the Himachal Pradesh High Court allowed the termination of pregnancy of 32 weeks of a 19 year
girl by stating has every right to take all steps necessary to preserve her own life against the avoidable
danger to it & it is also necessary to protect and preserve her life.
37
In the case of Murugan Nayakkar v. Union of India, the supreme court allowed the termination of
pregnancy of 32 weeks of a 13-year-old rape survivor by stating that;

“Considering the age of the petitioner, the trauma she has suffered because of the sexual abuse
and the agony she is going through at present and above all the report of the Medical Board constituted
by this Court, we think it appropriate that termination of pregnancy should be allowed.”
38
In the case of Mamta Verma v. Union of India, the Hon‟ble Supreme Court held that;

“Upon evaluation of the petitioner, the aforesaid Medical Board has concluded that her current
pregnancy is of 25 weeks and 1 day. The condition of the fetus is not compatible with life. The medical

34
Art.142 of Constitution of India: Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 ) The
Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete
justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the
territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is
so made, in such manner as the President may by order prescribe.
35
Civil Appeal no. 10463 of 2017, Supreme Court of India.
36
CWP No. 2250 of 2017, Himachal Pradesh High Court, decided on 17.10.2017
37
Writ Petition(s)(Civil) No(s). 749/2017
38
WRIT PETITION (CIVIL) NO.627 OF 2017
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evidence clearly suggests that there is no point in allowing the pregnancy to run its full course since the
fetus would not be able to survive outside the uterus without a skull. In the circumstances, we consider it
appropriate in the interests of justice and particularly, to permit the petitioner to undergo medical
termination of her pregnancy.”
39
The Supreme Court allowed the termination of 24 weeks of pregnancy since the fetus was without skull.

 DIS-ALLOWING TERMINATION OF PREGNANCY BEYOND TWENTY (20) WEEKS

 The Supreme Court did not allow a woman to abort her 26-week fetus set to be born with „down
syndrome‟ noting that there is no danger to the life of the mother or the fetus. Down Syndrome is
40
a congenital disorder which causes intellectual impairment and physical abnormalities.

 Supreme Court declined to order termination of pregnancy since substantial amount of time (32
weeks) was passed due to negligence of authorities and ordered a compensation of Rs.
41
10,00,000 (Ten Lacs).

 The Punjab and Haryana High Court didn‟t allow the termination of pregnancy of 26 weeks of 14-
42
year-old rape survivor considering the impact on her health.

 The Hon‟ble Supreme Court rejects the petition filed by a 10-year-old rape survivor to terminate
her pregnancy of 32 weeks by stating that it is neither in the interest of the child nor in fetus,
43
which is 32 weeks old, however, the medical board noted that Continuation of pregnancy is less
44
hazardous for the girl child and fetus than termination of pregnancy at this stage.

 The Supreme Court (SC) on 16/07/2018 denied a 20-year-old woman permission to terminate her
25-week-old pregnancy, stating that aborting a healthy fetus that is unlikely to affect the mother‟s
45
physical health amounted to murder.

CONCLUSION

The trend of the judicial decisions with regards to the medical termination of the pregnancy beyond the
statutory of Twenty (20) weeks witnessed one peculiar feature i.e. the sole reliance on the report of the
medical board. Therefore, if the sole reliance is on medical condition of the patient then why there to put a

39
Meera Santosh Pal v. Union of India, WPC No. 17 of 2017
40
Live law, SC Refuses permission to abort 26-week fetus. https://www.livelaw.in/sc-refuses-permission-woman-abort-26-week-
foetus-syndrome/(last accessed on 01/07/2019)
41
Ms. Z v State of Bihar, Civil Appeal No. 10463 of 2017
42
Sikander v. State of Haryana, CWP No. 21291 of 2018.
43
Alakh Alok Srivastva v. Union of India, WP(C) No. 565 of 2017
44
Ibid, ¶ 2
45
Hindustan Times, Aborting healthy foetus akin to murder, says SC rejecting plea to terminate pregnancy, July 17, 2018,
https://www.hindustantimes.com/india-news/aborting-healthy-foetus-akin-to-murder-says-sc-rejecting-plea-to-terminate-
pregnancy/story-j49knvQai1CbtheqeSZYiK.html (last accessed on 01/07/2019)
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 46
statutory cap over termination of pregnancy. The recent decision of the Bombay High Court, justified on
absence of sufficient grounds to make an exception permitting MTP for a 25 weeks fetus indicates that
the Act does not address the diverse situations properly and does not fit into the spirit of times. The
47
enforcement of the Act has definitely failed the objective of its enactment and the rate of abortion, per se
is on the rise.

The Medical Termination of Pregnancy Act, 1971 has failed to adhere itself with the change in time.
Nowadays, the medical science has progressed and it can be predicted whether the pregnancy can be
continued or not, it will safe for mother or fetus, whether the termination will be more appropriate or
constitution. The Hon‟ble Supreme Court had very cautiously took that risk by not allowing the termination
of pregnancy of 10 year old rape survivor by placing reliance over the medical board report, however it
has to be kept in mind that the delivery may be proved fatal for a 10 year old child but terminating it at the
time when both were healthy will definitely amounts to murder.

There can be only response to this problem i.e. to revert back to the basic quality of law that it is dynamic
in nature. There are two proposed solution which can put an end to these complex matter;

1. By Adding a provision in the Act where the High Court has the inherent saving powers like the
existing provisions in CPC and CrPC, and under that provision the court can allow/dis-allow
termination of pregnancy beyond the Statuary Period.
2. By Adding a provision similar to that of in UK Abortion Act, 1967 where it is the discretion of the
not less than two doctors to decide at any point of time that whether to allow the termination or
not keeping in mind the health of mother and fetus and that too in good faith.
nd
The 2 solution may not prove effective since the same can be misused as the opinion of doctors will be
subjective and there will be no scrutiny of the same. The First proposed solution will be appropriate to end
this conundrum as there will be judicial scrutiny of claims.

The Fundamental right of a women and at the same time the state duty to maintain standards of public
health and order shall be kept in mind while dealing with issues related to termination of pregnancy and
bias towards any of these may be fatal. Termination of a pregnancy should be allowed keeping in mind
the condition of each and every case and especially medical report and there can‟t be any single
yardstick to judge each and every case.

46
Nikhil D. Dattar (Dr.) v. Union of India, (2008) 110 Bom LR 3293.
47
The rate of induced abortions throughout years, (1) Shah (1966)-3.9 million (2) IPPF (1970)-6.5 million, (3) Goyal et al. (1976)-4.6
million, (4) ICMR (1990)-1.9 million, (5) Unicef (1991)-5 million, (6) GOI (1991-1992)-0.6 million, (7) Chabra and Nuna (1994)-6.7
million c.f. Dr. Sharad Iyehgar, “Current status of Abortion in India” <http://www.aiims.ac.in/aiims/events/Gynaewebsite/ma-
finalsite/ReportsandRecommendations.html> (last accessed on 10/25/2018)
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