Right To Abortion Must Be Balanced With Compelling State Interest To Protect Health Of Mother And Foetus, Centre Tells SC

Responding to a petition which sought to liberalize certain existing provisions regarding abortion in the Medical Termination of Pregnancy (MTP) Act, 1971, the Union government has stated that a pregnant woman does not have the absolute right to abort her pregnancy.

The petition, filed by Dr. Nikhil Datar, in 2009, had challenged provisions of the MTP Act and sought an increase in the timeline to terminate pregnancy from the current ceiling of 20 weeks to a period of 26 weeks. The petitioner sought amendments to the statute, so that a woman could abort a foetus even after a period of 20 weeks.

Substantial risk that the child could be born with deformities or abnormalities should be a ground for abortion, the petition stated.

The Centre, through the Ministry of Health and Family Welfare, filed its reply on September 11 wherein it was submitted that a "pregnant woman's right to abort her pregnancy is not an absolute right, and the right to abortion must be balanced against the compelling State interest of protecting the mother's health and the life of the foetus/unborn child."

The government also highlighted that they sought to reduce mortality rates caused by unsafe abortions. "Reducing mortality and morbidity due to pregnancy related causes is an important priority of the government", it submitted.

Calling the Petition 'premature', and urging the court to dismiss the same, the centre submitted that it would be easier for 'vulnerable women' seeking termination of pregnancy to get legal access through the proposed amendments. "With the object of strengthening and expanding the access to abortion services" the ministry has examined the provisions of the MTP Act, and in consultation with various experts, it had proposed the Amendment Bill in 2014. To "further strengthen the issues concerning health and safety of the women" the bill was redrafted in 2019, and will be finalized after a another round of consultation and vetting by the Law ministry, said the Government.

The matter came up for hearing before a bench comprising of Justices Deepak Gupta and Aniruddha Bose. While the bench did not seem inclined towards legislating on the issue of increasing the current cap for termination, it did indicate at passing guidelines regarding the same. The matter has now been posted for September 24. 

Last July, the Supreme Court had issued notice on another PIL challenging the provisions of MTP Act to the extent it restricted the right of a woman to abort. That petition also highlighted that the provisions allowed abortion only for married women, resulting in discrimination against single mothers.

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