Abor­tion: Not anymore hard or fast

Libertatem Magazine - - Contents - Jane Maria Tomy


A rape vic­tim of 16 years had be­come preg­nant. She had ap­proached the Gu­jarat High Court at the 24th week of preg­nancy to al­low for abor­tion un­der the Med­i­cal Ter­mi­na­tion of Preg­nancy Act (here­inafter MTP Act).


Can the High court take into ac­count the best in­ter­ests of the child and al­low for the abor­tion of a foe­tus that is older than 20 weeks un­der the MTP Act?


This is­sue is a much re­cent de­bate that is on­go­ing among the courts. The MTP Act pro­vides that an abor­tion can be al­lowed only on a foe­tus that is 12 weeks to 20 weeks old. Also, the reg­is­tered med­i­cal prac­ti­tioner has to con­firm un­der Sec­tion 3 of the MTP Act that the con­tin­u­a­tion of preg­nancy shall be caus­ing risk to the life of par­ent and/or child. In case of rape, Ex­pla­na­tion 1 gives a le­gal pre­sump­tion that the preg­nancy would cause grave in­jury to the men­tal health of the wo­man.

Till re­cently, the courts had stuck to a hard-and-fast ap­pli­ca­tion of this rule. There­fore, if the wo­man be­came a lit­tle late to ap­proach the court caus­ing the foe­tus to cross the 20 weeks line, the courts of­ten re­jected the pe­ti­tion. But now, the courts have been tak­ing a le­nient view de­pend­ing on the ‘best in­ter­ests’ of the wo­man and also, de­pend­ing on the facts of the case.

In this case too, the Gu­jarat High Court re­ferred to the apex court de­ci­sion in Chan­drakant Jayan­ti­lal Suthar v. State of Gu­jarat where the abor­tion of a 14 year old rape vic­tim was al­lowed de­spite cross­ing the 20 weeks mar­gin. The best in­ter­est test was elab­o­rated in the case of Su­chita Sri­vas­tava & Anr. vs. Chandigarh. It was ob­served by the court in that case –

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 the in­ter­ests of the vic­tim alone and not those of other stake­hold­ers such as guardians or 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 ex­cise of re­pro­duc­tive rights.

Con­sid­er­ing the same pa­ram­e­ters, the court took a le­nient view in this case as well. The court noted that forc­ing a mi­nor girl who had un­der­gone the trauma of rape to give birth shall be in­hu­man. Adding to that, the court also no­ticed that she was al­ready fac­ing health prob­lems like anaemia and she does not have the phys­i­cal stamina to con­tinue in preg­nancy. There­fore, the court al­lowed the abor­tion of the foe­tus, although the mi­nor was 24 weeks preg­nant.

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