| The provision of the MTP Act imposes a severe restriction on the exercise of the reproductive choice of the woman. This restriction on abortion puts an undue burden on the exercise of free reproductive choice of the woman. The PIL seeks to declare Sections 3(2)(a), 3(2) (b), 3(4)(a), 3(4) and section 5, to be unconstitutional. |
Before 1971: Any kind of abortion was termed as illegal, where the mother and practitioner could be punished. The MTP Act was introduced as a ‘health measure’ for the women of the country. It also allows abortion on ‘humanitarian bases’ such as pregnancy due to sexual crimes like rape or intercourse with a minor.
International human rights treaties signed and ratified by India support the recognition of women’s and girls’ reproductive rights including the right to safe and legal abortion. Under human rights law and in accordance with Article 51(c) of the Constitution of India, which requires the government of India to respect international law. UN bodies have repeatedly held governments accountable for failing to modify or clarify abortion laws where it has led to the denial of abortion, including in several cases where women or girls have requested an abortion beyond 20 weeks
International human rights standards maintain that human rights begin at birth. While states may have a legitimate interest in protecting prenatal life, such interests cannot be prioritized over the legal rights granted to women and girls under human rights law. The Universal Declaration of Human Rights states that all human beings are born free and equal in dignity and rights.
Third-party authorizations violate women’s equality and constitute a form of discrimination against women; creating a barrier in accessing reproductive health services. Further, the Committee on Economic, Social and Cultural Rights (CEDAW Committee), for instance, has urged states to repeal requirements of third-party authorizations, including those by spouses, parents, health authorities, and judges. The CEDAW Committee and the UN Special Rapporteur on the Right to Health have expressed concern over requirements of multiple medical authorizations for abortion services, such as permission from panels of doctors. And the Committee against Torture has found that requirements that women obtain judicial authorization before accessing an abortion may constitute an “insurmountable obstacle” to accessing abortion and that when denial of such judicial authorization occurs for victims of rape, it may constitute torture or ill-treatment.
The European Court of Human Rights has specifically rejected judicial authorization for abortion in cases of health risks arising from a fetal impairment, stating,
“The Court does not consider that the constitutional courts are the appropriate forum for the primary determination as to whether a woman qualifies for an abortion which is lawfully available in a State. In particular, this process would amount to requiring the constitutional courts to set down on a case-by-case basis the legal criteria by which the relevant risk to a woman’s life would be measured and, further, to resolve through evidence, largely of a medical nature, whether a woman had established that qualifying risk.”
August 2019: The Bombay High Court had dismissed a PIL seeking amendment of abortion laws in the country and increasing the time limit of pregnancy from 20 weeks especially in case of rape victims. Legally abortions are allowed in 12 weeks. Section 5 (2) of the Medical Termination of Pregnancy Act beyond 20 weeks. The concern was raised by a Trust based in Pune said that the pregnancy in case of rape victims are often deducted late.
| The PIL sought a direction to declare section 3(2)(b) of the MTP Act, which restricted the termination of pregnancy not exceeding 20 weeks on the ground of risk to the life of the woman or the child when born, as unconstitutional and void. The plea also challenged Section 3(4) of the Act which said that no pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, will be terminated except with the consent in writing of her guardian. It sought a direction to declare Section 5 of the Act, which provided termination of pregnancy beyond 20 weeks only on the ground of immediate necessity of saving the life of the woman, as unconstitutional and void. The plea sought direction for the implementation of the MTP (Amendment) Bill, 2014 which had proposed to do away with the requirement of the opinion of a registered medical practitioner to terminate a pregnancy and also to enhance it to 24 weeks. |
A PIL filed by three women demanding that any reproductive choices made by a woman in the first trimester (up to 12 weeks of pregnancy) must get complete protection from laws. The Supreme Court has already issued a notice to the Centre seeking its response to public interest litigation (PIL) that asks for decriminalising abortion and give women the right of complete autonomy to make decisions related to reproductive choices.
The petitioners, Swati Agarwal, Garima Sakseria and Prachi Vats, have asked the court to declare certain provisions of the Medical Termination of Pregnancy Act (MTP), 1971, as unconstitutional as they restrict a woman from exerting her fundamental right to reproductive choice. A bench then led by former Chief Justice of India (CJI) Ranjan Gogoi agreed to admit the PIL.
The “harsh restrictions” sought to be struck down by the petitioners – Sections 3 (2)(a), 3(2)(b), explanation 3 to section 3(2), Sections 3(4)(a), 3(4) and 5 are discriminatory and violative of personal liberty and bodily autonomy, the petitioners argued.
Legally abortions are allowed until 12 weeks. Section 3 of the MTP Act allows for pregnancy up to 12 weeks to be terminated by a registered medical practitioner, if he/ she believes 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. For pregnancies between 12 and 20 weeks, termination requires the same opinion from two registered medical practitioners. Termination in this period is also allowed if doctor believes that the child conceived would be born with a serious physical or mental handicap.
Section 5 of the MTP Act, among other things, permits termination of pregnancy exceeding 20 weeks only in cases of immediate risk to life.
The petition argues that the current law is a violation the principles of privacy as propounded in the Puttuswamy case in 2017 when a nine-judge bench held unanimously that the right to privacy was a constitutionally protected, and incidental to other freedoms guaranteed by the Constitution. It also mentions the landmark 1973 verdict of the US Supreme Court in Roe vs Wade, where the court held that the government could not prohibit abortions in the first trimester because termination of pregnancy in this period involved minimal risk.
January 29, 2020: The Union Cabinet approved extending the upper limit for permitting abortions from the present 20 weeks to 24 weeks. The Cabinet approved the Medical Termination of Pregnancy (Amendment) Bill, 2020 to amend the Medical Termination of Pregnancy Act, 1971.
REFERENCE: 1. Ensuring Reproductive Rights: Reforms to address women's and girls need for abortion after 20 weeks in India [CENTRE FOR REPRODUCTIVE RIGHTS]
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