14 Aug 2020 11:04 AM GMT
Reproductive rights is the one of the most talked about, yet ignored aspect of human rights in India. Reproductive rights with respect to abortion is still a grey area with respect to human rights and fundamental rights. They bring with it a lot of stigma and apprehensions regarding sexual health. Laws like Medical Termination of Pregnancy Act prioritise the consent of a woman for...
Reproductive rights is the one of the most talked about, yet ignored aspect of human rights in India. Reproductive rights with respect to abortion is still a grey area with respect to human rights and fundamental rights. They bring with it a lot of stigma and apprehensions regarding sexual health. Laws like Medical Termination of Pregnancy Act prioritise the consent of a woman for the termination of pregnancy over anybody else's consent. There have been cases where minor girls or women with STDs have been denied abortion by the courts just because they had crossed 20 weeks of gestation period, which is the maximum for conduction of medical termination of pregnancy as per the Indian law. The Medical Termination of Pregnancy Act has by far, granted absolute rights of abortion only to married women. Under Protection of Children from Sexual Offences Act, minor sexual abuse victims are ought to reveal their conception to a guardian which at some instances, leads to hesitation in coming out regarding their pregnancy.
REPRODUCTIVE HUMAN RIGHTS AND ABORTION LAWS: POINTS OF CONCERN
As per the MTP act, a woman remains at the disposal of a registered medical practitioner's judgment even in the early stages of pregnancy, violating the right of a woman to make reproductive choices about her own body. The Hon'ble Supreme Court in the case of Justice K S Puttaswamy v. Union of India reiterated the judgment in Suchitra Srivastava's case in holding that the choice of a woman to carry a pregnancy to its full term, to deliver, and to raise children are inclusive of her right to privacy, health, and dignity.
Every right has two elements- material element and formal element. When we say that we have an interest in reputation, it means we have an interest in enjoying a good name and the State is obliged to protect that interest. Similarly, when have an interest in our body and if a doctor obligated to give a safe medical treatment denies abortion, we would be denying her those rights guaranteed under article 21.
The gestational age limit of 20 weeks on abortions falls short in the present era because the gynaecologists and obstetricians believe that there are certain foetal abnormalities that can be detected only after 20 weeks of conception.
So far, neither the Union not State Government-controlled hospitals have adequate equipment (such as suction apparatus) which is, at present, believed to be the most modern and simplest methods of abortion.
Section 28 of PCPNDT act further binds the hands of courts in taking cognizance of offences falling under the act if the notice has not been given within 15 days to appropriate authority. Such cumbersome procedure when a women might be forcibly deprived of her female foetus or would be threatened and tortured for the same, is violation of the principle of ex aequo et bono.
International treaties which India has been signatory to and has ratified subsequently have also often been juxtaposed with Indian laws and referred to by courts in various judgments. Article 12 of International Covenant on Economic, Social and Cultural Rights mandates that the States Parties must recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. A woman denied her right over her body when her life is threatened or the pregnancy is unwanted, it is a direct attack on her physical and mental health. The treaty also ensures that women with disabilities are also vested with rights pertaining to physical and mental health which obviously include reproductive human rights.
The Punjab High Court in the case of Suchita Srivastava v. Chandigarh Administration had stated that international human rights law recognizes the rights of a person only after birth. It further observed that the right to control their body, fertility, and motherhood choices should be left to the women alone. This judgment is quite instrumental in outlining the essence of raging the worldwide debate commonly referred to as "pro-choice v. pro-life". This debate is found to be in conflict with religious principles, and social and cultural beliefs of Indian society.
Further, a three-Judge Bench of the Supreme Court while dealing with the rights of a woman over her body in a matter pertaining to the issue of abortion in the case of a mentally disabled and pregnant woman, incorporated the right of a woman to make reproductive choices in the ambit of personal liberty under Article 21 of the Constitution, saying, "It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating."
STATE OF RAJASTHAN AND ORS. V. V.S. AND ANR.
The respondent was subject to a sexual assault after which she conceived. She moved an application through her mother seeking permission for termination of her pregnancy before the Special Judge, SC/ST Act cases, Churu, Rajasthan who directed a medical examination to ascertain the physical and mental status of the girl and of the foetus to assess whether she was capable of safe child birth. It was found that there was no serious threat to her life in termination of pregnancy but there was a scope of medical or surgical complications.
Since the victim was a minor, the case was transferred to the Court of the Special Judge, POCSO Act Cases, Churu who held that the application was not maintainable because the length of gestation had gone beyond the threshold of 20 weeks prescribed by The Medical Termination of Pregnancy Act.
According to the Medical Termination of Pregnancy (MTP) Act, a pregnant minor can legally receive an abortion only with the consent of a legal guardian. Under the Protection of Children from Sexual Offences (POCSO) Act 2012, any sexual activity under the age of 18, even if consensual, comes under the legal scrutiny. Thus, if any adolescent goes to a doctor seeking any services related to reproductive health, including abortion, the doctor is mandatorily required to report that to the authorities. So while MTP Act regulations lay down a confidentiality procedure to protect the identity of the abortion-seeking girl, POCSO on the other hand necessitates disclosure to the authorities, which is an anomaly in connection to the right of privacy of such minor girl. This makes us ponder over the fact that only a handful of women make it to the courts, where they face additional trauma due to delay in legal proceedings, all this while their pregnancy is steadily advancing.
WHAT PREVAILS IN ADJUDGING COMPARATIVE AGONY?
Doctrinal research has settled beyond the pale of doubt that delivering a child below the age of 18 years is not conducive to the mental and physical well-being of the mother and future complications are imminent.
In this case, the conception was a result of sexual assault being committed on the minor girl, which infringed her fundamental right to live as a normal person without undergoing the trauma of carrying the child of her rapist apart from the invariable trauma of conceiving at such a young age. This, should be given precedence over the fictional fundamental right of the child whose coming to the world hangs in the balance.
In contrast to the judgment by the Hon'ble High Court of Rajasthan which prioritized the right to life of the foetus over the right to life of the victim, the Hon'ble Supreme Court held that Explanation (1) of Section 6 of the MTP act clearly stipulates that where pregnancy is caused by rape, the anguish caused to the victim would be unbounded. Since the victim here was a child and had an entire life ahead of her, the situation was graver. The court had to strike a balance between the right to life of two "children."
It needs to be noted here that a bill to increase the permissible limit for medical termination of pregnancy from 20 weeks to 24 weeks in certain situations has already been approved by the Cabinet and is awaiting approval by the Parliament.  The then HRD Minister Prakash Javadekar said that it was aimed to protect the reproductive rights of women, ensure safe termination of a pregnancy and most importantly help the victims of rape, girls with disabilities as well as minors, who may not realise they are pregnant until later.
The medical opinion on teenage pregnancies and its impact on the unborn child was dealt with by the Madras High Court in the case of V. Krishnan vs. G. Ranjan.
The Hon'ble bench took cognizance of the piquant situation that the victim's right to seek abortion had been irretrievably frustrated because of the delay occurred at the initial stages. Apparently, the victim sought termination of her pregnancy well in time but the matter was unnecessarily delayed because of red-tapism and systemic indifference.
The rights of women pertaining to their reproductive health should be recognized without being subject to judicial and statutory control as upholding their right to life and personal liberty under Article 21 and this should be recognized much sooner than the proposed amendments.
 WRIT PETITION (CIVIL) NO. 494 OF 2012.
 (2009) 9 SCC 1
 In Kharak Singh v. State of U.P., [AIR 1963 SC 1295 : (1964) 1 SCR 332], Subba Rao, J. opined that Article 21 and the right of personal liberty provided thereby is a right to be free from restrictions or encroachments on one's person; and Gobind v. State of M.P., [(1975) 2 SCC 148], where the Supreme Court opined that the right to privacy must include "the personal intimacies" of inter alia marriage, motherhood, procreation, and child-rearing.
 WRIT PETITION NO. 1344/ OF 2019.
 1994 Writ LR 91.