A Matter of Choice

What the right-to-privacy judgment means for India’s abortion law

The MTP Act states that a woman who is up to 12 weeks pregnant may abort with the approval of one medical practitioner. A woman who is between 12 and 20 weeks pregnant requires the approval of two medical practitioners. mustafa quraishi / ap photo
01 January, 2018

In mid August 2017, a ten-year-old girl gave birth by caesarean section in a Chandigarh government hospital. Her parents reportedly did not tell her she had had a baby removed from her body, saying instead that the procedure was to remove a stone from her stomach.

The girl was allegedly raped by her uncle, repeatedly, over several months, and taken to the hospital after she complained of a stomach ache. There, doctors discovered that she was over 30 weeks pregnant. Her parents filed a public interest litigation in the Supreme Court to seek approval for an abortion (under Indian law, a woman seeking to terminate a pregnancy that is over 20 weeks old must prove that the pregnancy threatens her life). On 28 July, the petition was heard by a bench comprising the then Chief Justice JS Khehar and Justice DY Chandrachud, who dismissed the plea because, according to reports, they took “note of a medical report that abortion was neither good for the girl nor for the foetus.”

About a month later, Khehar and Chandrachud were both part of a nine-judge bench that unanimously decided that Indians have a fundamental right to privacy, under Article 21 of the constitution, which deals with the right to life and liberty. The judgment stated that privacy “allows each human being to be left alone in a core which is inviolable.”

Most saw the court’s decision in light of what it would mean for Aadhaar, the unique-identification system being promoted by the centre. But the verdict’s implications stretch well beyond that—including to cases such as the one of the ten-year-old girl. The judgment pointed out that the recognition of the fundamental right to privacy may affect issues related to bodily autonomy, including abortion. “Concerns of privacy arise when the State seeks to intrude into the body of subjects,” Justice J Chelameswar wrote (though the decision was unanimous, six of the nine judges wrote separate concurring opinions). “A woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy,” Chelameswar continued. Justice Fali Nariman’s opinion included “the right to abort a fetus” as an item in a list of “a large number of privacy interests.”

To understand the potential significance of this judgment for abortion rights in India, it is important to recognise the ways in which the current legal framework often compromises the privacy of women seeking to terminate their pregnancies. In light of this, the right-to-privacy judgment should catalyse legislative reform that secures inclusive reproductive rights for all women.

The Indian Penal Code, enacted by the British in 1860, forbade abortion in all situations except ones where it would save the life of the mother. This stood for over a century, until, in 1964, the Central Family Planning Board formed a committee that suggested that the IPC’s strictures on abortion were too rigid, especially with thousands of women dying each year as a result of unsafe illegal abortions. In response to this, in 1971, the Medical Termination of Pregnancy Act was implemented, liberalising India’s abortion law.

The MTP Act—which is still India’s overarching law on abortion, though it has undergone some amendments since 1971—states that a woman who is up to 12 weeks pregnant may abort with the approval of one “registered medical practitioner.” A woman who is between 12 and 20 weeks pregnant may abort as well, but she must receive the approval of two medical practitioners. Medical practitioners are only permitted to grant abortions under certain circumstances: in the event that “continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health”; if the child would suffer from severe “physical or mental abnormalities”; if the pregnancy was caused by rape; or, finally, if the pregnancy “occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children.”

While it is difficult to deny that the MTP Act improved upon the IPC’s earlier stringency, it did little to acknowledge a woman’s autonomy over her own body. The act expanded the set of cases in which women could receive abortions, but still rigidly dictated the situations under which they could. This position, which affirms or denies the right to abort based on external circumstances, and depends upon the often subjective judgment of at least one medical practitioner, sometimes two, infringes on a woman’s privacy as well as her freedom over her own body. She is forced to account for her reason for wanting an abortion with medical practitioners, and to make them the arbiters of what should be her own private decision.

“Studies from India show that medical students do not know much about MTP,” Sundari Ravindran, a professor in the field of sexual and reproductive health, told me over email. She added, “Gynecologists may be averse to providing abortion, so making doctors the gate-keepers is like deliberately erecting a barrier for women’s access to abortion.”

The MTP Act excludes entire swathes of women. For example, in the event that an unmarried woman becomes pregnant due to a failure in contraception, the MTP Act would not permit her to abort, since the law refers specifically to a failure “of any device or method used by any married woman or her husband.” Similarly, an unmarried woman who has become pregnant through unprotected consensual sex, if she is unable to prove that carrying the pregnancy to term would cause her undue physical or mental damage, would struggle to obtain a legal abortion.

The law does not make room for even married women to seek abortion under certain circumstances. For example, the MTP Act provides no opportunity for a woman to abort if she is simply unprepared to have a child—whether for career-related reasons, financial constraints, emotional reasons, or otherwise. India’s lack of recognition of marital rape compounds this for married women, because a wife who is raped by her husband and made pregnant without her consent would have no legal recourse to an abortion on the grounds of rape. If we are to take seriously a woman’s fundamental right to privacy, it is crucial that her access to a legal abortion is not granted based on how dire her circumstances are judged to be by a third party. Women must be granted the right to make private choices about whether they want to carry a pregnancy to term.

One way to expand abortion rights in India is through amending the MTP Act. In late 2014, the health ministry floated a bill that aims to do just that. The draft bill proposes to allow women who are up to 12 weeks pregnant to receive abortions “on request”—with no stipulations of whether it is appropriate, and no need to defer to a medical practitioner. The legalisation of abortion on request would be a fundamental shift in India’s abortion law, recognising the autonomy of a woman over her own body (even if only in the first 12 weeks of pregnancy). The bill also mandates that medical practitioners maintain the anonymity of women who receive abortions, under pain of prosecution. Both of these steps would help bring India’s abortion law in line with the recognition of the fundamental right to privacy.

The amendment bill proposes other major changes as well, though they are more tangentially related to the issue of privacy. The bill changes the terms “married women” and “husband” in the MTP Act to “any woman” and “her partner,” making sure that a woman’s access to abortion in the event of contraceptive failure is not contingent on her marital status. It proposes to expand the eligibility criteria for “registered medical practitioners,” allowing healthcare professionals in non-allopathic fields such as homeopathy and Ayurveda to perform medical (but not surgical) abortions, increasing the number of places where women can access legal abortion. The bill also relaxes the restrictions on how and when women can terminate a pregnancy, stipulating that women seeking abortion beyond 12 weeks need the approval of only one medical practioner, not two. Perhaps most significantly, the bill also raises the 20-week limit to 24 weeks, granting women an extra month during which they may abort. This final change would be crucial for the detection of certain foetal abnormalities and conditions that might cause a woman to choose to terminate a pregnancy, but which, within the current legal cut-off, she may not know about in time.

Unfortunately, the bill’s progress is currently stalled. It was slated to be submitted for the perusal of the union cabinet earlier this year. But in May, after a homeopath in Sangli, Maharashtra, was discovered to have been conducting sex-selective abortions, the file was reportedly returned to the health ministry.

The right-to-privacy verdict may be the political fillip needed to bring the amendment bill back into consideration. Ravindran told me that she believes the judgment “offers an opportunity for making the argument to amend the MTP law and make abortion available on request at least during the first trimester of pregnancy.” Making the case for abortion on request, she said, “In societies where abortion is available on request by women, the abortion rates have not risen.”

It is instructive to consider how other countries have reformed their abortion laws. The right-to-privacy judgment includes lengthy discussions of comparative legal frameworks. Among the influential cases mentioned in it is the 1973 landmark decision in Roe vs Wade, in which, the right-to-privacy judgment says, the United States Supreme Court

dealt with the question of the right of an unmarried pregnant woman to terminate her pregnancy by abortion. The constitutionality of a Texas Statute prohibiting abortions except with respect to those procured or admitted by medical advice for the purpose of saving the life of the mother was challenged on the ground that the law improperly invaded the right and the choice of a pregnant woman to terminate her pregnancy and was violative of the “liberty” guaranteed under the Fourteenth Amendment and the right to privacy recognized in Griswold.

The judgment also quotes a passage of the Roe vs Wade majority opinion, which held that the US Constitution “does not explicitly mention any right of privacy. In a line of decisions, however, the Court has recognised that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” India’s right-to-privacy judgment can also form the bedrock for similar legal reasoning, for issues such as abortion access, non-normative sexualities, data protection and more. Such reforms may help bring about a society that would have produced a different outcome for the ten-year-old girl in Chandigarh.