Source: Gujarat High Court 

Why in News? 

A bench of Justice Nirzar S Desai held that the consent of the girl is required before the termination of pregnancy and the parents cannot force the termination.                        

• The Gujarat High Court held this in the case of X v. State of Gujarat. 

What was the Background of X v. State of Gujarat Case? 

• A man filed a plea for termination of 25-week pregnancy of his minor daughter. 
• The petition was filed seeking termination of pregnancy on the ground that the girl was 16 years old and was from the lower strata of society. 
• Thus, the matter before the High Court was whether the termination of pregnancy should be allowed or not. 

What were the Court’s Observations?  

• The Court held that it was primarily the consent of the girl that is required to terminate the pregnancy. 
• The parents cannot force her to terminate the pregnancy. 
• The Counsel pleaded that the consent of the father is also required when the victim is only 16 years old. On this, the Court orally remarked that consent and force are two different things, and the girl cannot be forced to terminate the pregnancy. 
• The father finally withdrew his plea, and the Court held that the petition was disposed of as withdrawn.

What is Medical Termination of Pregnancy? 

About: 

• In India termination of pregnancy was not legal until 1971 when the Medical Termination of Pregnancy Act, 1971 (MTP Act) was enacted. 
• The MTP Act came into force on 1st April 1972. 
• Section 3 of the MTP Act lays down when pregnancies may be terminated by registered medical practitioners.

• Rule 3B of MTP (Amendment) Rules, 2021 vis-a-via Section 3 (2)(b) of MTP Act: 
  • Rule 3B of the MTP (Amendment) Rules, 2021 provides for the categories of the women who shall be eligible for termination under Section 3 (2) (b) of MTP Act: 
    • Survivors of sexual assault or rape or incest 
    • Minors 
    • Change of marital status during the ongoing pregnancy (widowhood and divorce) 
    • Women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016) 
    • Mentally ill women including mental retardation 
    • The foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and 
    • Women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government 
• Explanation to Section 3 (2) of MTP Act: 
  • Explanation 1 to Section 3 (2) provides that for the purpose of clause (a) 
    • Where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. 
  • Explanation 2 to Section 3 (2) provides that for the purpose of clause (a) and (b)  
    • Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. 
• Consent 
  • Section 3 (4) of the MTP Act provides that the pregnancy of following women shall only with the consent of the guardian in writing: 
    • The woman has not attained the age of 18 years 
    • The woman has attained the age of 18 years and is mentally ill.

What is the International Position on Termination of Pregnancy?

• United States of America: 
  • Roe v. Wade (1973): 
    • Before the landmark judgment of Roe v. Wade, abortion was illegal in the USA in 30 states. 
    • But after winning in the district court, Roe appealed to the Supreme Court. On Jan 22, 1973, the Supreme Court with a dominant majority of 7-2 amended the constitution. Following the due process of law under the “right to privacy’’, abortion was now legalized in the US. 
    • The judgment halted the practices of many federal and state abortion laws. 
    • Women were furnished with the right to abortion up till fetal viability, that is until the third trimester. 
  • Planned Parenthood v. Casey (1992): 
    • With the 5-4 majority, the Supreme Court reaffirmed the central holding of the Roe Case. 
  • Dobbs v. Jackson Women’s Health Organization (2022): 
    • Women Health Organization, an abortion clinic challenged the abortion law of Mississippi that allowed the option of abortion only up to 15 weeks. 
    • The U.S. Supreme Court overturned the landmark judgment of Roe v. Wade. 
    • Thus, the constitutional right to abortion was revoked.
• United Kingdom: 
  • The Abortion Act, 1967 (as amended by the Human Fertilization and Embryology Act, 1990) states when abortion is legal in U.K. 
  • The abortion is legal if it is performed by a Registered Medical Practitioner and is authorized by two doctors, acting in good faith, on more of the following grounds: 
    • That the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or 
    • That the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or 
    • That the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or 
    • That there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
• Other Countries: 
  • According to 2017 data, 59 countries allowed elective abortions out of which only 7 permitted the procedure beyond 20 weeks. 
  • These 7 countries are: Canada, China, the Netherlands, North Korea, Singapore, the United States, and Vietnam. Now, India has joined them.

What are the Landmark Judgments on MTP Act?

• Suchita Srivastava v. Chandigarh Administration (2009): 
  • The Supreme Court held that the right to terminate pregnancy conferred to women under the MTP Act relates to the Constitutional right of women to make reproductive choices under Article 21 of the Constitution of India, 1950.
• High Court on its Own Motion v. State of Maharashtra (2018): 
  • The Bombay High Court appropriately determined that forcing a woman to proceed with an undesired pregnancy infringes upon her bodily autonomy, increases her emotional distress, and adversely impacts her mental well-being due to the immediate societal, financial, and other repercussions associated with the pregnancy.
• X v. Principal Secretary, Health and Family Welfare, Govt of NCT Delhi (2022): 
  • The Supreme Court court gave the right to all women to terminate their pregnancy under the MTP Act, 1971 within 24 weeks of pregnancy.