Abortion Law: SC Seeks Center’s Reply on PIL

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The Supreme Court on Monday issued a notice to the Centre seeking its response to a Public Interest Litigation (PIL) filed by three women, namely Swati Agarwal, Garima Sakseria and Prachi Vats, a teacher, a digital marketing professional and a Public Relations and Corporate Communication specialist respectively, that asks for decriminalising some sections of abortion law, and give women the right of complete autonomy to make decisions related to reproductive choices. The PIL challenges the validity of the Section 3(2), 3(4), and 5 of Medical Termination of Pregnancy Act, 1971 as discriminatory and violative of personal liberty and bodily autonomyguranteed by our constitution.

The MTP Act is a significant legal tool which provides a legal framework upon which the abortion law sustains. The MTP Act specifies –

  • who can terminate a pregnancy;
  • till when a pregnancy can be terminated; and
  • where can a pregnancy be terminated.

The MTP Act, 1971 puts some legal restrictions on the process of abortion in India. It specifies the time period upon which the different statutes of this act could be applied in different situations provided in the act. The petition questions the admissibility of Section 3(2), 3(4) and 5 of his act. Section 3(2) reads that the pregnancy can be tested and terminated by a registered medical practitioner if the pregnancy period is upto 12 weeks. Further, when the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, not less than two registered medical practitioners are required in termination only if there is some health issues of either mother or child[1].

Section 3(4), further reads that in case of Pregnant women, who have not attained the age of 18, her guardian’s consent is required in the case of Termination of pregnancy[2]. Section 5, inter alia,isexecption to Section 3 and 4 of this act and permits for the termination of pregnancy only  in cases of immediate risk of life[3].

Arguments by the Petitioners:

The petitioners argued that the law the law is contrary to the Article 21 of the Constitution of India which also includes the the right of reproductive as the core of liberty and personal autonomy guaranteed under Article 21. The petition also takes the precedent of the case of Suchitra Srivastav Vs UOI (2009) 9 SCC 1 and  K.S Puttaswamy (2017) 10 SCC 1. The petition states:

“The right to exercise reproductive choice i.e. the right to choose whether to conceive and carry pregnancy to its full term or to terminate is it at the core of one’s privacy, dignity, personal autonomy, bodily integrity, self determination and right to health recognized by Article 21 of the Constitution[4]”

Further, the reference of the very landmarkjudgement of the U.S. i.e. Roe v Wade 410 US 113. was cited in the petition.  Roe v. Wade is a landmark judgement by US Supreme Court which established  that abortion is a women’s legal right.Although in later judgments of US Supreme Court it has been noted that with the advancement of science and technology safer abortions are possible even at later stages even after first trimester(Hodes &Nauser v. Derek Schmidt [5]) and held thattrimester based lines have been blurred with the advancement inscience.

Interest of Unmarried ignored

Also the petitioners alleges that explanation to Section 3(2)(b) is discriminatory for the unmarried or single women under Article 14, as it only focuses on the married women as the petition argues:

The deeming provision provides that an unwanted due to failure of a contraceptive measure is presumed to cause grave mental injury to the pregnant. The object is to enable a woman to terminate an unplanned and unwanted pregnancy since a pregnancy entails several physical ,mental and socio-economic consequences. Keeping the object in view there is no rationale for not affording the same protection to an unmarried woman. On the contrary an unwanted and unplanned pregnancy will invariably in the case of an unmarried woman will ensue more grave consequences. The provision treats equals unequally amounting to hostile discrimination and therefore liable to be struck down as being violative of Article 14 of the Constitution[6].

[1] The Medical Termination of Pregnancy Act, 1971

[2] The Medical Termination of Pregnancy Act, 1971

[3] The Medical Termination of Pregnancy Act, 1971

[4]https://www.livelaw.in/top-stories/sc-issues-notice-on-pil-seeking-decriminalization-of-abortion-146377

[5]https://www.courtlistener.com/opinion/4613994/hodes-nauser-mds-v-schmidt/

[6]https://www.livelaw.in/top-stories/sc-issues-notice-on-pil-seeking-decriminalization-of-abortion-146377