Abortion and the right choice: Whether to be pro-life or pro-choice?

The Supreme Court has done well to allow a 14-year-old rape victim, a minor, to abort her 24-week-old foetus, provided a panel of medical experts certifies that her mental and physical health will be safeguarded. The court’s task was complicated by the relevant law — Section 3(2) of the Medical Termination of Pregnancy (MTP) Act, 1971—outlawing all abortions beyond 20 weeks of pregnancy. The victim had approached the apex court through her father after the Gujarat high court rejected her plea on the ground that she was way past the 20th week of pregnancy. Four factors appear to have influenced the court’s decision to view the matter from a humanitarian, rather than a legal, perspective. The pregnant girl was traumatised, she was a victim of rape, she was too young to become a mother, and she refused the option of giving up the baby for adoption after birth.

In fact, the two conflicting views on the issue, whether to be pro-life or pro-choice, also appear to have played out before the two-judge bench hearing the matter. Justice Kurian Joseph, a Catholic, asked if abortion was necessary, raising the question of the agony of the unborn child, whose limbs would have already started developing. He also suggested the option of adoption while noting that 90 per cent of infants given up for adoptions are from unwed mothers. But Justice Joseph appears to have not pressed the point further after the victim’s counsel, Kamini Jaiswal, said the girl deserved the chance to forget the ordeal and live with dignity. The lawyer also argued the girl’s right to make her own reproductive choices was a dimension of the right to personal liberty guaranteed under Article 21 of the Constitution. 

Interestingly, Jaiswal was forced to lay stress on the MTP Act’s emphasis on the “mental health” of the mother and also draw attention to a provision in Section 3 of the Act which notes that pregnancy caused by rape shall be presumed to constitute a grave injury to the mental health of the pregnant woman. This is because the MTP Act does not allow a woman to terminate pregnancy merely because it is “unwanted”. Simply put, even if it is an unwanted pregnancy, a woman will require a doctor to certify that not terminating the pregnancy will cause “grave injury to the physical and mental health of the woman”, or that there is substantial risk of foetal abnormalities. Despite the law requiring medical certification as a deterrent to sex-selective abortions, it has hardly helped to stem the practice of sex determination or female foeticide.

The Supreme Court has now delegated the matter to a panel of four doctors, including a clinical psychologist, to offer their opinion and proceed accordingly. In the United Kingdom, abortion is legal up until 24 weeks of pregnancy. But the UK Abortion Act also prescribes some specific situations, including mental health of the pregnant woman, to allow abortions after 24 weeks. Very few abortions are performed after 20 weeks of pregnancy because of the impact they may have on the pregnant woman’s health. In the present instance, the minor girl was sedated and raped by a doctor, and she concealed the pregnancy from her parents, until it was too late for legal abortion. In this context, neither she nor her parents can be faulted, and the law is right in taking a back seat and giving primacy to medical opinion. The girl may not have got a favourable decision from the Supreme Court. But by refraining from dismissing her petition outright citing the legal position enunciated by the MTP Act, the court has leaned towards a pro-choice stance. However, leaving abortion decisions to medical discretion must not come at the cost of the pregnant woman’s right to choose whether or not to have her baby.