Interpreting MTP Act From A Pro Choice Perspective

Medical Termination of Pregnancy Act, 1971 ("the MTP Act") that governs the field in India aimed to address the issue of illegal abortions resulting in risks to life of women. It was enacted as it was realized that the provisions of IPC dealing with illegal abortions were enacted about a century ago, drawn up and keeping with the then British Law on the subject and that a large number of abortions were practiced throughout the country, though most of the women were married and had no particular reason to conceal their pregnancy. Unlike many progressive law reforms introduced in India in last few decades which find their roots in International Treaties, MTP Act was an Act that came to be introduced pursuant to recommendations of Shantilal Shah Committee constituted in 1966. It was not a legislation based on pro-choice debates. As the statement of objects and reasons of 1971 Act says, it was enacted with a view to liberalize then existing provisions relating to termination of pregnancy and was conceived (i) as a health measure- when there is danger to the life or risk to physical or mental health of the women; (ii) on humanitarian grounds - such as when pregnancy arises from a sex crime like rape or intercourse with lunatic woman etc; and (iii) on eugenic grounds - where there was substantial risk that the child, if born, would suffer from deformities and diseases. The Act made provisions with respect to (i) who can terminate the pregnancy, (ii) when pregnancies may be terminated by Registered Medical Practitioner and (iii) the place where pregnancy may be terminated.

Over the years, the law relating to Medical Termination of Pregnancy has seen a significant tilt towards the pro-choice debate, more so in last one year, thanks to the amendment brought in by Act 8 of 2021 with effect from 24.09.2021 and two judgments, one of the Supreme Court in the case of Xvs. Principal Secretary, Health and Family Welfare Department[1] dated 29.09.2022 and the other of Delhi High Court in the case of Mrs. X vs. GNCTD& another[2] dated 06.12.2022.

Act 8 of 2021, with effect from 24.09.2021, brought in two significant changes: firstly, it permitted termination of pregnancy upto 20 to 24 weeks (as against the earlier 12 to 20 weeks); secondly, it amended Explanation 1 and 2 to Section 3(2) extending benefit of termination of pregnancy occurring as a result of failure of any birth control device or method used any woman and her partner for the purpose of limiting the number of children or preventing pregnancy (as against the earlier married woman and her husband for the purpose of limiting the number of children). MTP Rules, 2003 were also amended by insertion of Rule 3A and 3B. Rule 3B gives categories of women eligible for termination of pregnancy upto 24 weeks which includes a woman whose marital status changes during ongoing pregnancy, such marital status being that of widowhood and divorce. The amendments, while recognizing woman's agency in using birth control devices, in making choices under changed circumstances remained short of the expectations. The Act and Rules also made contradictory provisions. For example, while the Act considered the right of an unmarried woman to terminate pregnancy on failure of birth control devices, the Rules made no such provision. Also, while the Act, post amendment, in Section 3(2)(b)(ii) dropped the words "to be seriously handicapped" appearing after the words "there is substantial risk that if the child is born, it would suffer from any serious physical or mental abnormality", such qualifying words continued in Rule 3(B)(f). The amendments however, provided enough grounds to extend the benefits of medical termination to a wider range of women.

The two recent judgments have read the statute from a pro-choice perspective and have brought the woman in the center of operation of the MTP Act.

The Supreme Court, in the case of X vs. Principal Secretary, Health and Family Welfare (supra) , was examining a plea by an unmarried woman seeking to terminate her pregnancy, before completion of 24 weeks, contending that though she had become pregnant as a result of consensual relationship, later as her partner refused to marry her, she did not want to carry the pregnancy. The High Court rejected her plea on interpretation of Rule 3B of MTP Rules holding that the Petitioner who is an unmarried woman and whose pregnancy arise out of consensual relationship, is clearly not covered by any of the clauses under the MTP Rules, 2003, therefore, Section 3(2)(b) of the Act is not applicable to the facts of this case.

When the matter reached the Supreme Court, the Supreme Court first allowed the Petitioner to terminate pregnancy. Challenge to the provisions was heard later. The Petitioner contended that she was not mentally prepared to raise a child by herself, that if she was compelled to do so, it would cause grave injury to her physical and mental health, that she was not prepared to face the social stigma surrounding unwed mothers; that Section 3(2)(b) of the MTP Act and Rule 3B of the MTP Rules are arbitrary and discriminatory because they exclude unmarried women from their ambit, they discriminate against women on the ground of marital status, in violation of Article 14 of the Constitution. The contentions of the Petitioner found an echo in the stand of the State to the effect that the term "change of marital status" in Rule 3B(c) ought to be interpreted as "change in the status of a relationship" to include unmarried or single women as well as women who are not divorced but are separated or have been deserted; that "Live-in relationships" are equivalent to marital relationships because in both types of relationships, the woman is entitled to maintenance, that various national legislations, including the MTP Act, do not make a distinction between married women and unmarried or single women; that women enjoy the right to bodily integrity and autonomy, as well as reproductive rights and that they are entitled to exercise decisional autonomy. The Supreme Court was quick to hold that

"95………If Rule 3B(c) was to be interpreted such that its benefits extended only to married women, it would perpetuate the stereotype and socially held notion that only married women indulge in sexual intercourse, and that consequently, the benefits in law ought to extend only to them. This artificial distinction between married and single women is not constitutionally sustainable. The benefits in law extend equally to both single and married women."

What is significant is not only the stand of the Government, but the fact that, placing the woman in the center of the discussion, the Supreme Court examined two other important issues: that of marital rape and of unwanted pregnancy causing injury to mental health of a woman. At the center of the discussion is the right of a woman to reproductive autonomy and right to dignity. To quote a few lines from the Judgement,

"102. The right to reproductive autonomy is closely linked with the right to bodily autonomy. As the term itself suggests, bodily autonomy is the right to take decisions about one's body. The consequences of an unwanted pregnancy on a woman's body as well as her mind cannot be understated………Therefore, the decision to carry the pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman.

……….

113. If women with unwanted pregnancies are forced to carry their pregnancies to term, the state would be stripping them of the right to determine the immediate and long-term path their lives would take. Depriving women of autonomy not only over their bodies but also over their lives would be an affront to their dignity. The right to choose for oneself - be it as significant as choosing the course of one's life or as mundane as one's day-to-day activities - forms a part of the right to dignity. It is this right which would be under attack if women were forced to continue with unwanted pregnancies."

It is based on recognition of right of a woman to have autonomy over her body and right to dignity that benefit of medical termination is extended to victims of marital rape. The Court held:

"76. It is not inconceivable that married women become pregnant as a result of their husbands having "raped" them. …….

77. It is only by a legal fiction that Exception 2 to Section 375 of the IPC removes marital rape from the ambit of rape, as defined in Section 375. …….

78. Notwithstanding Exception 2 to Section 375 of the IPC, the meaning of the words "sexual assault" or "rape" in Rule 3B(a) includes a husband's act of sexual assault or rape committed on his wife. The meaning of rape must therefore be understood as including marital rape, solely for the purposes of the MTP Act and any rules and regulations framed thereunder. Any other interpretation would have the effect of compelling a woman to give birth to and raise a child with a partner who inflicts mental and physical harm upon her."

Approving an earlier judgment of the Bombay High Court in High Court in the case of On its Own Motion vs. the State of Maharashtra[3], the Supreme Court said that:

"68…….the High Court of Bombay correctly held that compelling a woman to continue any unwanted pregnancy violates a woman's bodily integrity, aggravates her mental trauma and has a deleterious effect on the mental health of the woman because of the immediate social, financial and other consequences flowing from the pregnancy."

The judgment of the Supreme Court discussed above expands the scope of the MTP Act and the interpretation makes the Act in its operation pro-choice, pro-woman.

Another example of reading the Act from a pro-choice perspective is the recent judgment of Delhi High Court in the case of Mrs. X vs. GNCTD & Anr (supra). In the said case, the Court was examining petition of a pregnant woman seeking to terminate pregnancy in the 33^rd week of gestation, much beyond what is permissible under the MTP Act. The Court was also faced with opinion of a medical board that denied termination. The Court interacted with the woman, her husband and the Specialist Doctors. Laying emphasis on considerable mental trauma that the woman was facing, the Court held that though the Medical Board's opinion is to deny the termination, the Court has to take an overall view of the matter. The Court looked at various judgments to conclude that the Court can permit termination even at an advance stage, even in the 9^th month if substantial foetal formalities are detected in the foetus. Court observed:

"40. the basis of the conversation between the Court and the Petitioner, the Court has clearly been able to gauge the mental trauma affecting the parents, their economic and social conditions, as also, the fact that the Petitioner is taking a cautious and well informed decision, while seeking termination of pregnancy. She has understood as to what termination of pregnancy entails at such an advanced stage. This Court is convinced that, as a mother, she has weighed the same with the unpredictability and the risks involved, considering the condition of the foetus.

41. These factors, though may not be strictly relevant under Section 3(2B) of the MTP Act, 1971 ought to be considered while exercising discretion under Article 226 of the Constitution of India……"

In conclusion, the Court held that

"44……the ultimate decision in such cases ought to recognize the choice of the mother, as also, the possibility of a dignified life for the unborn child. Keeping in mind these two factors, the Court comes to the conclusion that the mother's choice is being made in a completely bona fide manner……"

The choice of a woman once again finds focal point.

If recognizing a woman's right over her body, her reproductive choices and right to terminate an unwanted pregnancy are demands of time, female infanticide is also a stark reality. Even a bare act of MTP Act comes with the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 ("PCPNDT Act") printed in the same book, many a times printed before MTP Act, also on the cover. PCPNDT Act is a pro-life legislation aimed to prevent female infanticide that also address the issue of right of a woman to give birth and her autonomy in taking such a decision.

The two Acts present two extreme ends of current spectrum of our society and the status of women within that. While no woman should be made to carry on an unwanted pregnancy and bear the burden of an undesired motherhood that affects her personal and professional way of life, we are far from the days when there would not be a legal barrier to a woman exercising right to abort without giving any explanation, exercising her agency to terminate pregnancy just because she wants to.

Both the aforesaid judgments that focus the debate on autonomy, dignity and choice of a woman, illustrate what liberal interpretation can achieve. One can only hope that in the years to come, we shall see an increasing number of women taking different situations to Courts, nudging the judicial system, finding more pro-woman, pro-choice judges that reduces RMP's fear of prosecution; that expands the meaning of mental health as appearing in Section 3(2)(b)(i) to include a woman who is compelled to continue an unwanted pregnancy; that strikes down the words "to be seriously handicapped" appearing in Rule 3(B)(f) as being contrary to Section 3(2)(b)(ii); that expands the categories of places where pregnancy may be terminated, that makes access to such places easier. The list continues….

The author is an Advocate at Gujarat High Court , views are personal.

[1] 2022 LiveLaw (SC) 809