Woman has final right to have or not have kid: SC

In a judgment widening the scope of the right to life, the Supreme Court has held that forcible termination of pregnancy or denying a woman the choice to bear a child violates her fundamental right. Conversely, refusal by a woman to bear a child, too, is a fundamental right.

“A woman’s right to privacy, dignity and bodily integrity should be respected,” the court said on Friday, elaborating its reasons for allowing a mentally challenged rape victim from Chandigargh to give birth. The court on July 21 had stayed the medical termination of pregnancy (MTP) of the woman.

The court said the legislative intent of the MTP Act, 1971, was to provide a qualified ‘right to abortion’ and that termination of pregnancy has never been recognised as a normal recourse for expecting mothers.

Although there is little doubt that a woman’s right to make reproductive choices too is a dimension of ‘personal liberty’ as understood under article 21 of the Constitution, the court said that it is important to recognise that reproductive choices can be exercised to procreate as well as abstain from procreating. 

“This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or, alternatively, the insistence on the use of contraceptive methods,” a bench of chief justice KG Balakrishnan, and justices P Sathasivam and BS Chauhan held.

“Furthermore, women are also free to choose birth-control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.”

The bench also held that there are ‘compelling state interests’ in protecting the life of a prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified under the MTP Act are fulfilled. The Act says: “No pregnancy of a woman who has not attained the age of 18 years, or, who, having attained the age of 18 years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian…. No pregnancy shall be terminated except with the consent of the pregnant woman.”

The bench termed as ‘anti-democratic’ the measures taken to forcibly perform family planning surgeries and abortions on mentally retarded people. It rubbished the belief that mental defects are passed on to the next generation.

In the case of the Chandigarh woman, an expert panel had said that though her mental age was that of a nine-year old, she understood the meaning of pregnancy and could do her own things. Moreover, she wanted to bear the child.