Right To Sexual Autonomy Comes With Responsibility But Can't Be Denied: P&H HC Directs Re-Examining Possibility Of Terminating 26-Week Pregnancy Of Class 12 Student

Observing that unmarried women, who exercise their right to sexual autonomy, cannot be denied consideration for seeking medical termination of pregnancy, the Punjab & Haryana High Court has said that "exercise of a right of sexual autonomy also at times comes along with the responsibility to discharge duties that arise on exercise of such an option."

The Court was hearing the plea to terminate 26 weeks pregnancy of a Class XII student, who was in a consensual relationship with a boy at the time and later parted ways.

While directing the medical board to re-examine the possibility of terminating the pregnancy, who opined that at this stage foetus would likely be born alive and thus recommended continuation of the pregnancy, Justice Vinod S. Bhardwaj said, "this Court may have approved of the medical termination if the foetus or the mother would have suffered a grave physical or mental harm or the child was likely to be born with serious physical, mental or psychological deformities, however, a mental shock or stigma as a result of a pregnancy not approved, but on account of a consensual relationship, cannot at this juncture be seen as an event which would have an irreversible mental hazard."

"Exercise of a right of sexual autonomy also at times comes along with the responsibility to discharge duties that arise on exercise of such an option. A person may be called upon to live with the consequences of the option exercised, when such consequences cannot be erased and are required to co-exist. The desirability of a circumstance cannot outweigh the reality of the circumstance," the Court added.

These observations came in response to the plea of an 18-year-old seeking termination of her 26-week pregnancy.

The girl was in a consensual relationship and later parted ways. The Medical Board opined that the foetus would likely be born alive and thus recommended continuation of the pregnancy.

According to the Medical Termination of Pregnancy (MTP) Act, termination of the pregnancy can be allowed by the two registered medical practitioners for up to 20 weeks. However, beyond 20 weeks to 24 weeks, only certain categories of women are allowed to terminate pregnancy.

However, considering that the pregnancy had crossed the statutory period (24 weeks) till which termination is allowed under the MTP Act, the Court did not allow the termination.

Unmarried Women Cannot Be Denied Right To Termination Of Pregnancy 

The Court said that an unmarried woman, who exercises her right to sexual autonomy, cannot be denied consideration for seeking medical termination of pregnancy when such right is recognized for a married woman under the Medical Termination of Pregnancy Act (MTP Act).

The Court observed that the law cannot live in the past and remain static or act as an impediment which blocks the changing social requirements and fails to advance the cause of social justice

“The Court cannot be indifferent to the plight of single woman/mother's exercising a right recognized in law and to force them to live with the consequences of exercises of such right with no respite,” it added.

It also opined that it could not have been the intent of the law that a woman should be compelled to register a rape case to have her entitlement to seek termination of pregnancy, recognized,

“An interpretation that would compel the people to resort to an illegality for avoiding a relief would even otherwise be not desirable either by the Statute or by a Court of law,” said the judge.

Right To Privacy Protects Woman's Choice Not To Disclose Identity Of Father Of The Child

The Court noted that the petitioner expressed her unwillingness to disclose the name of the father when it was asked during the proceedings. 

"Her right of privacy and dignity empowers her to make a choice as to whether she would like to disclose the name of the partner or not and that the law cannot compel a woman to make public the name of the person who is the father of the foetus and/or the child", said the Court

Law Silent On Termination Of Over 24 Weeks Pregnancy Of Unmarried Woman 

While noting that the MTP Act is silent with respect to pregnancies as a result of a consensual sexual relationship between consenting adults, Justice Vinod S. Bhardwaj said, the MTP Act, was silent with respect to consenting adults, who may not intend to get married and/or enter into a long-lasting relationship but are in the process of exploring and exercising their sexual autonomy.

It was held that a Court of law is required to fill the gap by judicial intervention and interpretation, without legislating, till such time that the legislation makes an appropriate arrangement or takes a conscious decision for such a situation.

It noted that rule 3 B of MTP (Amendment) Rules 2021 provides for abortion within 24 weeks, due to a change of material (including marital) circumstances and that the said provision had to be read to extend also to an unmarried woman and that disallowing the same access to an unmarried woman/girl would be discriminatory.

Right To Terminate Pregnancy Beyond 26 Weeks Is Not 'Unbridled'

Court said that such a right was subject to certain procedural restrictions and an individual cannot claim an unbridled right to state that notwithstanding the mandate of the Act of 1971 and the Rules of 2003, yet, she was entitled to seek medical termination.

Justice Bhardwaj also said that the Court cannot be oblivious to the possibility of a pre-term delivery and the consequences which its order may have on a child and that the Court cannot assume a role where it takes upon itself to decide that the child ought not to be allowed to be born alive.

To balance the equities and to prevent stigma and embarrassment to the petitioner, the Court made certain directions to the Medical Board to re-examine as to whether the termination of the pregnancy can be carried out, without a foeticide.

It stated that in the event that the Medical Board believes that the medical termination of the pregnancy would not be possible and it would rather lead to a pre-term delivery or potentially foeticide, the procedure shall not be carried out any further.

Appearance: Senior Advocate Gaurav Chopra and advocates Shehbaz Thind, Gagandeep Singh, Jagraj Singh, Buta Singh, Rishabh Bajaj and Sanjana Makkar for the petitioner

Advocate Vivek Saini, amicus curiae 

Additional Advocate General Saurav Verma and Deputy Advocate General Aditya Sharda for the State.

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