Why in News?

Recently the High Court of Allahabad in the case of X v. State of U.P & Ors., allowed a 12-year-old rape victim to undergo medical termination of pregnancy after considering the opinion of the Medical Board that the continuation of pregnancy "poses a greater risk to her physical and mental health" due to her "tender age".

Background

• Recently, a rape victim approached the Allahabad High Court for termination of her 25-week pregnancy.
• Observing that a woman cannot be forced to give birth to the child of a man who had sexually assaulted her, the High Court had requested for the constitution of a medical board to examine the petitioner and to submit its report before the Court.
• After the submission of report by the medical board, the Court came to the conclusion that the victim can be granted relief by ordering the termination of her 25 weeks of pregnancy.

Court’s Observations

• The bench of Justice Mahesh Chandra Tripathi and Justice Prashant Kumar observed that in the case of sexual assault, denying a woman the right to say no to medical termination of pregnancy and fasten her with the responsibility of motherhood would amount to denying her human right to live with dignity as she has a right in relation to her body which includes saying Yes or No to being a mother.

Legal Provisions

Medical Termination of Pregnancy Act, 1971

• The Medical Termination of Pregnancy (MTP) Act 1971 came into force on 1st of April 1972.
• The Medical Termination of Pregnancy Act of 1971 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.
• This Act was updated more comprehensively in 2020, and the revised law became effective in September 2021 with the following amendments:
  • Increase in the maximum gestational age at which a woman may obtain a medical abortion from 20 weeks under the MTP Act of 1971 to 24 weeks.
  • A single qualified medical professional’s opinion might be used to access the MTP up to 20 weeks into the pregnancy and from 20 weeks up to 24 weeks, the opinion of two registered medical practitioners would be required.
  • After seeking the opinion of two registered medical practitioners, the pregnancy can be terminated up to 24 weeks of gestational age under the conditions given below:
    • If the woman is either a survivor of sexual assault or rape or incest;
    • If she is a minor;
    • If there is a change in her marital status during the ongoing pregnancy (due to widowhood or divorce);
    • If she suffers from major physical disabilities or is mentally ill;
    • Termination of pregnancy on the grounds of fetal malformation incompatible with life or the possibility of a seriously handicapped child being born;
    • If the woman is situated in a humanitarian setting or disaster or stuck in the emergency as declared by the Government.
• Abortion is performed based on fetal abnormalities in cases where pregnancy has progressed over 24 weeks.
  • A four-member Medical Board, established in each state under the MTP Act, must grant permission for this type of abortion.
• In X v. Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi (2022), the Supreme Court delivered a significant judgment that there should not be any distinction between married and unmarried women in seeking an abortion of pregnancy in the 20-24 weeks terms arising out of a consensual relationship. It stated that all women are entitled to safe & legal abortion.

Right of a Woman to exercise her reproductive Choice under Article 21 of the Constitution of India, 1950

• Article 21 of the Indian Constitution gives an unmarried woman the right of choice as to bear or not to bear a child on a similar footing as that of a married woman.
• In Suchita Srivastava v. Chandigarh Administration (2009), Supreme Court recognized that a woman’s right to reproductive autonomy is a dimension of Article 21 of the Constitution of India.

Article 21 of the Indian Constitution

• Article 21 is generally characterized as ‘the procedural Magna Carta protective of life and liberty’.
• Justice Bhagwati in Francis Coralie Mullin v. The Administrator (1981) said that Article 21 embodies a constitutional value of supreme importance in a democratic society.
• This Article can only be claimed when a person is deprived of his ‘life or personal liberty’ by the State. This Article is enforceable even against persons other than the State or its instrumentalities.