Source: Supreme Court

Why in News?

Recently, the Supreme Court declined the plea of a married woman to medically terminate her 26-week pregnancy.

• The order was passed by a bench comprising of CJI DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra in the case of X. v. Union of India and Anr.

What is the Background of X. v. Union of India and Anr. Case?

• The petitioner is a married woman of twenty-seven years who is 26 weeks pregnant.
• She and her husband have two children.
• The petitioner states that she did not discover that she was pregnant until twenty weeks after the pregnancy had elapsed because she had lactational amenorrhea.
• The petitioner avers that she and her husband attempted to medically terminate the pregnancy at various hospitals but that they were unable to do so because of the Medical Termination of Pregnancy (MTP) Act, 1971 read with the Medical Termination of Pregnancy Rules 2003 (as amended in 2021).
• The petitioner approached the SC by invoking the writ jurisdiction under Article 32 of the Constitution of India, 1950 (COI) for the medical termination of her pregnancy on the grounds that -
  • She suffers from post-partum depression and her mental condition does not permit her to raise another child.
  • Her husband is the only earning member of their family and they already have two children to care for.
• On 5^th October 2023, a two-Judge Bench comprising of Justices Hima Kohli and B V Nagarathna directed the petitioner to appear before a Medical Board constituted by the All-India Institute of Medical Sciences (AIIMS), New Delhi.
• By its order dated 9^th October 2023, the SC permitted the medical termination of the pregnancy.
• Subsequently, the Union had filed an application for recalling the order dated 9^th October 2023 stating that the medical board had said that the foetus had a viable chance of being born.
• Justice Hima Kohli said that her judicial conscience does not allow her to permit the termination of pregnancy in the light of the latest medical report about the possibility of the survival of the foetus whereas Justice BV Nagarathna said that she found no reason to interfere with the well-reasoned order passed by the Court.
• In view of disagreement, the matter has been referred to a larger bench for consideration comprising of CJI DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra.
• The 3-judge bench, while exercising its jurisdiction under Article 142 of the COI held that the medical termination of the pregnancy cannot be permitted.

What were the Court’s Observations?

• The Court observed that as the length of the pregnancy has crossed twenty-four weeks and is now twenty-six weeks and five days, permitting the petitioner to carry on with the termination of pregnancy would violate Sections 3 and 5 of the MTP Act, 1971.
• The Court noted that there is no immediate threat to the mother and no substantial foetal abnormalities were diagnosed by a Medical Board in this case.
• The Court further clarified that the cost of all medical procedure in the matter would be borne by the State and the petitioner would have the ultimate say on whether she wanted to keep the child upon being born or give it up for adoption.

What are the Legal Provisions Involved in it?

MTP Act, 1971

• About:
  • The termination of pregnancies is governed by the MTP Act, and the rules framed under it.
  • The MTP Act is progressive legislation containing 8 sections which regulates the manner in which pregnancies may be terminated.
  • The MTP Act and its Rules of 2003 prohibit unmarried women who are between 20 weeks to 24 weeks pregnant to abort with the help of registered medical practitioners.
• Section 3, MTP Act, 1971
  • Section 3 of this Act deals with the situation in which the pregnancies may be terminated by registered medical practitioners. It states that -

(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner, -

(a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are.

Of opinion, formed in good faith, that, -

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health; or

(ii) 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.

Explanation 1.-Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

(3) In determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman's actual or reasonable foreseeable environment.

(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.

(b) Save as otherwise provided in Clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.

• Section 5, MTP Act, 1971
  • Section 5 of this Act deals with the application of Section 3 and 4. It states that -

(1) The provisions of Section 4 and so much of the provisions of sub-section 2 of Section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practioner, shall not apply to the termination of a pregnancy by the registered medical practitioner in case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.

(2) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), the termination of a pregnancy by a person who is not a registered medical practitioner shall be an offence punishable under that Code, and that Code shall, to this extent, stand modified.

What are the Landmark Cases under the MTP Act?

• In Suchita Srivastava v. Chandigarh Administration (2009) case, SC recognized that a woman’s right to reproductive autonomy is a dimension of Article 21 of COI.
• In X v. Principal Secretary, Department of Health and Family Welfare, GNCTD (2022), the SC held that the benefits this Act extend equally to both single and married women.

What is Article 32 of COI?

• Article 32 is a fundamental right which deals with the remedies for enforcement of rights conferred by Part III of the COI. It states that -

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.