Pregnant Prisoners Enjoy Equal Right In Making Motherhood Choices-Bombay HC Issues Guidelines [Read Judgment]

It also issued specific guidelines in respect of termination of pregnancies of either convicts or undertrials.

The Bombay High Court has ruled that imprisoned pregnant women should have complete right to make motherhood choices and should not be treated any differently from other pregnant women. The court stated that if the prisoner desires to terminate her pregnancy, she should be taken to the civil hospital on urgent basis.

A division bench of Justice V.K. Tahilramani and Justice Mridula Bhatkar, while hearing a suo moto PIL on medical facilities for women prisoners observed undue delay caused in obtaining permissions and committee approvals for carrying out abortions, causing undue complications for the pregnant inmate. The court upheld the right of women prisoners to medically terminate pregnancy and stated ‘Women in different situations have to go for termination of pregnancy. She may be a working woman or homemaker or she may be a prisoner, however, they all form one common category that they are pregnant women. They all have the same rights in relation to termination of pregnancy.’

The court reflected on the mental agony a woman undergoes while dealing with an unwanted pregnancy and stated: “A woman’s decision to terminate a pregnancy is not a frivolous one. Abortion is often the only way out of a very difficult situation for a woman. If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health.”

The court further directed that a medical practitioner while forming an opinion on termination of pregnancy should take into account the woman's actual or reasonable foreseeable environment and the likely physical and mental impact.

The court held that within the means of the Medical Termination of Pregnancy Act, women have been bestowed the right to deny motherhood with reasonable restrictions. The court held that a forced pregnancy can cause physical and mental trauma to a woman and violates basic human rights endowed with birth. Her right to abort an unwanted foetus emerges from Right to Life enshrined u/a 21 of the Constitution. The court held that ‘not providing her with the facility amounts to forcing a woman to continue with a pregnancy she does not want, which by itself constitutes a grave injury to her mental health and as such would fall under Section 3(2)(b)(i) of the Act. Hence, such a pregnancy can be lawfully terminated.’

The court also observed that though there are provisions for pregnant prisoners in the prison manual, no specific guidelines have been provided in respect of termination of pregnancies of either convicts or under trials.

The court issued following directions to maintain procedural efficiency in dealing with pregnant prisoners and carrying out abortions, if so desired, without undue delays.

1. Upon admission into a jail / prison, every woman prisoner of child bearing age shall undergo a Urine Pregnancy Test (UPT) within five days of being admitted to jail and in case of negative results, another test should be conducted after a month’s time.


2. The Medical Officer must inform the pregnant prisoner that she can get the pregnancy terminated, if her case falls under Section 3 or 5 of the Medical Termination of Pregnancy Act.


3. If the inmate wants an abortion, her statement should be recorded and maintained by the jail authority or Medical Officer and forward a copy of that statement with the prisoner when she is referred to the hospital.


4. The Medical Officer and Jail Superintendent shall ensure that woman prisoner is sent on urgent basis to the nearest government hospital to help her terminate the pregnancy. It is made clear that they shall not wait for any order of the court, if the case falls under Sections 3 or 5 of the Act.


5. Every prison shall maintain "Prison OPD Register" where details of medical examination of every prisoner examined are entered. The Register should be produced for inspection of the Sessions Judge / Magistrate deputed to visit the prison.


6. The Jail Superintendent and escort division to ensure that such prisoner as well as other prisoners needing medical treatment in a hospital are sent to the hospital as far as possible by 8:30 am, i.e when OPD opens.


7. After discharge from the said hospital, the prison authorities shall take due care of the woman prisoner until she fully recovers from the medical termination of her pregnancy.