Kerala HC Dismisses Plea Against MTP Act Provision Which Legalizes Abortion Under Specified Circumstances [Read Judgment]

The Kerala High Court has dismissed a PIL challenging constitutional validity of Section 3(2) of the Medical Termination of Pregnancy Act, 1971, which allows medical termination of pregnancy under specified circumstances.

The Law

Section 3 of the MTP Act contemplates four situations, wherein a woman can exercise her right to terminate pregnancy not exceeding 20 weeks, provided two registered medical practitioners shall certify the given conditions.

• -When pregnancy threatens the life of the mother. Even though a woman may normally be safe during pregnancy, certain patients develop symptoms like high blood pressure, cardiac distress etc., which can not only threaten the foetal health, but also the maternal health.
• -When there is substantial risk of the child being born with serious physical and mental abnormalities as to be seriously handicapped:
• -When the pregnancy is a result of rape: rape by itself exposes the woman concerned to great physical and mental trauma. In most cases, woman's mental health is disturbed by the act of rape and pregnancy that results from it can cause serious mental distress to her.
• -When pregnancy occurs due to failure of contraception: an unwanted pregnancy can cause mental stress to the mother and in turn, affect her physical and mental well being.

The PIL Contentions

Cry for Life Society had approached the High Court contending that permitting abortion for the reason that the yet to be born is handicapped or that the pregnancy caused as a result of failure of device or method used by any married women or her husband for the purpose of limiting the number of children, violates the right to life of the unborn child.

All pregnancies are not allowed to be terminated

The bench comprising the Chief Justice S. Manikumar and Shaji P. Chaly observed that all pregnancies are not allowed to be terminated, but only those which meet the exceptional circumstances that are referred to in Section 3(2) of the MTP Act. It said:

The exceptions carved out for termination of pregnancy would show that it is on account of adverse consequences to the life of a women, such a course of action is permitted and, therefore, the parliament in its wisdom, has introduced such provisions under MTP Act, 1971, and amended from time-to-time with good intention. So much so, the wisdom of the parliament on account of such intentions and object sought to be achieved by introducing such a provision cannot be said to be a thoughtless and insignificant one. True the constitutional courts can entrench upon the legislation, but such power should be exercised with utmost circumspection, since the framers of law have brought out the legislation with a real purpose to be achieved after taking into consideration various factual and other circumstances. But, at the same time, if any illegal circumstances like forcible termination etc., comes to the notice of the authorities, they are at liberty to proceed in accordance with law. That apart, the provisions of Section 3 of the MTP Act, 1971 make it clear that it only permits a voluntary action at the Will of a pregnant woman and in the case of pregnancy of a woman who has not attained the age of 18 or who has attained majority is a mentally ill person with the consent in writing of her guardian. Hence, it is clear that it is taking into account the choice of the woman or the guardian in any adverse circumstances that can occur on delivery and on being fully satisfied in accordance with the Rules, 2003 by a qualified medical practitioner, the medical termination of pregnancy is possible to be done. Considering all these aspects, we could safely come to a conclusion that the provisions so made for the medical termination of pregnancy is proportionate to the object sought to be achieved.

A laudable object to be achieved by terminating the pregnancy under certain specified circumstances

Referring to various Supreme Court judgments which dealt with the application of Section 3, the bench observed that the provisions are made with a clear objective of protecting the life of a pregnant woman, and to control the birth of a child having severe mental ailments with a remote chance of survival. There is a laudable object to be achieved by terminating the pregnancy under certain specified circumstances, it added.

While dismissing the PIL, the bench further said:

"it cannot be said that everyone, who is not interested to continue with the pregnancy, is entitled as of right, to seek medical termination of pregnancy on any grounds other than the one mentioned under Section 3 of the Act. Furthermore, it is clear and evident from the provisions of Prohibition of Sex Selection Act, 1994, that any medical termination of pregnancy, which is sought on the basis of sex, selection and determination, is punishable as per the provisions of the said Act. Therefore, sufficient and more safety measures and precautions are undertaken by the parliament, in order to ensure that unnecessary termination of pregnancies are not insisted upon or carried out by a pregnant woman or a medical practitioner respectively. " 

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