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The Supreme Court of India holds that the right to dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate an unwanted pregnancy

MMB Advocates > Uncategorized  > The Supreme Court of India holds that the right to dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate an unwanted pregnancy

The Supreme Court of India holds that the right to dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate an unwanted pregnancy


X v The Principal Secretary, Health and Family Welfare Department & Another

5802 of 2022

Supreme Court of India

DY Chandrachud, AS Bopanna & JB Pardiwala, SCJJ

September 29, 2022

Reported by Faith Wanjiku and Bonface Nyamweya

Download the Decision

Constitutional law-Bill of rights- right to human dignity- right to human dignity in relation to decision making on abortion of undesirable pregnancy- where the appellant was pregnant of an undesirable pregnancy after the lover refused to marry her- where the appellant instituted a petition before the High Court seeking the permission to abort- where her plea to abort was not granted by the High Court- what were the reasons for a permissible discontinuation of a pregnancy- Medical Termination of Pregnancy (Amendment) Act 2021, section 3 (2) (b).

Constitutional law-Bill of rights- right to human dignity- right to human dignity in relation to decision making on abortion of undesirable pregnancy- where the appellant was pregnant of an undesirable pregnancy after the lover refused to marry her- where the appellant instituted a petition before the High Court seeking the permission to abort- where her plea to abort was not merited- whether the decision of abortion relied solely on the pregnant woman- Medical Termination of Pregnancy (Amendment) Act 2021, section 3; Indian Penal Code, 1860, section 312; Constitution of India, 1950, article 51.

International law-human rights- right to equality and non-discrimination- obligation of United Nations member states to protect their citizens from any form of discrimination- where India had ratified the International Covenant on Civil and Political Rights of 2018, the International Covenant on Economic, Social and Cultural Rights of 1966, and the Convention on the Elimination of All Forms of Discrimination against Women of 1979- where all those instruments prohibited infringement of women’s autonomy and any form of discrimination- whether a state’s decision to bar a woman from discontinuing her undesired pregnancy amounted to infringement of her autonomy- International Covenant on Civil and Political Rights, 2018, article 6; Convention on the Elimination of All Forms of Discrimination against Women, 1979, article 16; International Covenant on Economic, Social and Cultural Rights of 1966, article 12.

Brief facts

The appellant was an Indian citizen and a permanent resident of Manipur. She was residing in New Delhi. The appellant averred that she was the eldest amongst five siblings and that her parents were agriculturists. At the time of the institution of the writ petition before the High Court of Delhi, the appellant was carrying a single intrauterine pregnancy corresponding to a gestational age of twenty-two weeks. The appellant was an unmarried woman aged about twenty-five years, and had become pregnant as a result of a consensual relationship.

The appellant wished to terminate her pregnancy as her partner had refused to marry her at the last stage. She stated that she did not want to carry the pregnancy to term since she was wary of the social stigma and harassment pertaining to unmarried single parents, especially women. Moreover, the appellant submitted that in the absence of a source of livelihood, she was not mentally prepared to raise and nurture the child as an unmarried mother. The appellant stated that the continuation of the unwanted pregnancy would involve a risk of grave and immense injury to her mental health. The High Court held, inter alia, that granting interim relief would amount to allowing the writ petition itself, and that gave rise to the current appeal.

Issues:

i.        What were the reasons for a permissible discontinuation of a pregnancy?

ii.        Whether the decision of abortion relied solely on the pregnant woman.

iii.        Whether a state’s decision to bar a woman from discontinuing her undesired pregnancy amounted to infringement of her autonomy.

Relevant provisions of law

Medical Termination of Pregnancy (Amendment) Act, 2021

Section 3- When pregnancies may be terminated by registered medical practitioners

(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

2[(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner, —

(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that-

(i) the 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; or

(ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.

Explanation 1. –For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purposeof limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2. –For the purposes of clauses (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

(2A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act.

(2B) The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.

(2C) Every State Government or Union territory, as the case may be, shall, by notification in the Official Gazette, constitute a Board to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act.

Held:

  1. Changing social mores had to be borne in mind when interpreting the provisions of an enactment to further its object and purpose. Statutes were considered to be always speaking. The law should be interpreted in terms of the changing needs of the times and circumstances.
  2. Parliament had enacted legislation bringing about congruence between the rights of married and unmarried women. The Maternity Benefit Act of 1961 was enacted to provide maternity benefits to women employed in any establishment. In terms of section 5 of the Maternity Benefit Act, 1961, the payment of maternity benefits was extended to all women (including unmarried women) by the use of the phrase every woman.
  3. In the evolution of the law towards a gender equal society, the interpretation of the Medical Termination of Pregnancy Act of 1971 and the Medical Termination of Pregnancy Rules of 2003 had to consider the current social realities and not be restricted by societal norms of an age which had passed into the archives of history. As society changed and evolved, so had to mores and conventions. A changed social context demanded a readjustment of laws.
  4. The Medical Termination of Pregnancy Bill was drafted and introduced in the Rajya Sabha on November 17, 1969. On August 2, 1971, the Medical Termination of Pregnancy Bill was introduced in the Lok Sabha with the intent to liberalise some of the restrictions under section 312 of the Indian Penal Code of 1860. The Medical Termination of Pregnancy Act was enacted by parliament as a health, humanitarian and eugenic measure.
  5. The whole tenor of the Medical Termination of Pregnancy Act was to provide access to safe and legal medical abortions to women. The Medical Termination of Pregnancy Act was primarily a beneficial legislation, meant to enable women to access services of medical termination of pregnancies provided by a registered medical practitioner. Being a beneficial legislation, the provisions of the Medical Termination of Pregnancy Rules and the Medical Termination of Pregnancy Act had to be imbued with a purposive construction.
  6. The Medical Termination of Pregnancy (Amendment) Act, 2021 intended to extend the benefits of the statute to all women, including single and unmarried women. The Medical Termination of Pregnancy (Amendment) Act, 2021, which came into force from September 24, 2021, introduced a major change in section 3 of the Medical Termination of Pregnancy Act by extending the upper limit for permissible termination of pregnancy from twenty weeks to twenty-four weeks. In terms of the unamended Medical Termination of Pregnancy Act, a pregnancy could only be terminated under section 3(2) if it did not exceed twenty weeks. The Medical Termination of Pregnancy (Amendment) Act, 2021 extended the upper limit and allowed termination of pregnancy up to twenty-four weeks for specific categories of women based on the opinion of two registered medical practitioners.
  7. The Medical Termination of Pregnancy (Amendment) Act, 2021 also extended the benefit of the legal presumption of a grave injury to the mental health of a woman on account of the failure of contraception, to all women and not just married women. In the unamended Medical Termination of Pregnancy Act, explanation II provided that the anguish caused by a pregnancy resulting from a failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children could be presumed to constitute a grave injury to the mental health of the woman.
  8. After the Medical Termination of Pregnancy (Amendment) Act 2021, the anguish caused by a pregnancy (up to twenty weeks) arising from a failure of a contraceptive device used by any woman or her partner either for limiting the number of children or for preventing pregnancy could be presumed to constitute a grave injury to a woman’s mental health. By eliminating the word married woman or her husband from the scheme of the Medical Termination of Pregnancy Act, the legislature intended to clarify the scope of section 3 and bring pregnancies which occurred outside the institution of marriage within the protective umbrella of the law.
  9. In terms of section 3(2)(b) of the Medical Termination of Pregnancy Act, not less than two registered medical practitioners had to, in good faith, be of the opinion that the continuation of the pregnancy of any woman who fell within the ambit of rule 3B of the Medical Termination of Pregnancy Rules would involve:

    (a) a risk to her life;

    (b) grave injury to her physical health; or

    (c) grave injury to her mental health.

  10. Alternatively, not less than two registered medical practitioners had to, in good faith, be of the opinion that there was a substantial risk of the child suffering from a serious physical or mental abnormality, if born. Women who seek to avail of the benefit under rule 3B of the Medical Termination of Pregnancy Rules continued to be subject to the requirements of section 3(2) of the Medical Termination of Pregnancy Act.
  11. One of the grounds on the basis of which termination of pregnancy could be carried out was when the continuance of a pregnancy would involve risk of injury to the mental health of the woman. The expression grave injury to her physical or mental health used in section 3(2) was used in an overarching and all-encompassing sense. The two explanations appended to section 3(2) provided the circumstances under which the anguish caused by a pregnancy could be presumed to constitute a grave injury to the mental health of a woman.
  12. Courts in the country had permitted women to terminate their pregnancies where the length of the pregnancy exceeded twenty weeks (the outer limit for the termination of the pregnancy in the unamended Medical Termination of Pregnancy Act) by expansively interpreting section 5, which permitted registered medical practitioners to terminate pregnancies beyond the twenty-week limit when it was necessary to save the life of the woman.
  13. The grounds for approaching courts differed and included various reasons such as a change in the circumstances of a woman’s environment during an ongoing pregnancy, including risk to life, risk to mental health, discovery of foetal anomalies, late discovery of pregnancy in case of minors and women with disabilities, and pregnancies resulting from sexual assault or rape. Those were illustrative situations thrown up by cases which travel to the court. Although the rulings in those cases recognized grave physical and mental health harms and the violation of the rights of women caused by the denial of the option to terminate unwanted pregnancies, the relief provided to the individual petitioner significantly varied.
  14. Rule 3B(a) of the Medical Termination of Pregnancy Rules was based on an acknowledgement of the reality that survivors of sexual assault, rape, or incest could face immense stigma if and when they shared the fact of their assault with others, including family members. It was no secret that a culture of shame surrounded sexual violence in India. Survivors were often hesitant to speak about the violence inflicted upon them. That was doubly the case with victims of incestuous sexual assault or rape, whose close relatives abused their power and authority over the woman and other family members oftentimes being unwilling to believe that the perpetrator (that was to say, their relative) was guilty of sexual violence.
  15. Many survivors, including minors, could not even be aware that pregnancy was a possible consequence of rape. Hence, the delay in revealing the fact that a man had raped them could lead to a delay in discovering the pregnancy. Alternatively, the woman in question could be unable to access medical facilities in a timely fashion and could therefore find herself unable to terminate the pregnancy before the completion of twenty weeks.
  16. In order to avail the benefit of rule 3B(a) of the Medical Termination of Pregnancy Rules, the woman needed not necessarily seek recourse to formal legal proceedings to prove the factum of sexual assault, rape or incest. Neither explanation 2 to section 3(2) nor rule 3B(a) of the Medical Termination of Pregnancy Rules required that the offender be convicted under the Indian Penal Code or any other criminal law for the time being in force before the pregnant woman could access an abortion.
  17. A change in material circumstance could result when a woman was abandoned by her family or her partner. When a woman separated from or divorced her partner, it could be that she was in a different (and possibly less advantageous) position financially. She could no longer have the financial resources to raise a child. That was of special concern to women who had opted to be a homemaker thereby forgoing an income of their own. Moreover, a woman in that situation could not be prepared to raise a child as a single parent or by co-parenting with her former partner. Similar consequences could follow when a woman’s partner died.
  18. The ambit of reproductive rights was not restricted to the right of women to have or not have children. It also included the constellation of freedoms and entitlements that enabled a woman to decide freely on all matters relating to her sexual and reproductive health.
  19. Reproductive rights included the right to access education and information about contraception and sexual health, the right to decide whether and what type of contraceptives to use, the right to choose whether and when to have children, the right to choose the number of children, the right to access safe and legal abortions, and the right to reproductive healthcare. Women had to also have the autonomy to make decisions concerning those rights, free from coercion or violence.
  20. A woman was often enmeshed in complex notions of family, community, religion, and caste. Such external societal factors affected the way a woman exercised autonomy and control over her body, particularly in matters relating to reproductive decisions. Societal factors often found reinforcement by way of legal barriers restricting a woman’s right to access abortion. The decision to have or not to have an abortion was borne out of complicated life circumstances, which only the woman could choose on her own terms without external interference or influence. Reproductive autonomy required that every pregnant woman have the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorization from a third party.
  21. The right to reproductive autonomy was closely linked with the right to bodily autonomy. Bodily autonomy was the right to make decisions about one’s body. The consequences of an unwanted pregnancy on a woman’s body as well as her mind could not be understated. The foetus relied on the pregnant woman’s body for sustenance and nourishment until it was born. The biological process of pregnancy transformed the woman’s body to permit that.
  22. The woman could experience swelling, body ache, contractions, morning sickness, and restricted mobility, to name a few of a host of side effects. Further, complications could arise which posed a risk to the life of the woman. A mere description of the side effects of a pregnancy could not possibly do justice to the visceral image of forcing a woman to continue with an unwanted pregnancy. Therefore, the decision to carry the pregnancy to its full term or terminate it was firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman.
  23. A woman could become pregnant by choice irrespective of her marital status. In case the pregnancy was wanted, it was equally shared by both the partners. However, in case of an unwanted or incidental pregnancy, the burden invariably fell on the pregnant woman affecting her mental and physical health. Article 21 of the Constitution recognized and protected the right of a woman to undergo termination of pregnancy if her mental or physical health was at stake. It was the woman alone who had the right over her body and was the ultimate decision-maker on the question of whether she wanted to undergo an abortion.
  24. If women with unwanted pregnancies were 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 – formed a part of the right to dignity. It was that right which would be under attack if women were forced to continue with unwanted pregnancies.
  25. The right to dignity entailed recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy. Although human dignity inhered in every individual, it was susceptible to violation by external conditions and treatment imposed by the state. The right of every woman to make reproductive choices without undue interference from the state was central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical well-being also injured the dignity of women.
  26. Article 51 of the Constitution required the state to foster respect for international law and treaty obligations in the dealings of organised people with one another. The Protection of Human Rights Act, 1993 recognised and incorporated international conventions and treaties as part of Indian human rights law. Article 6 of the International Covenant on Civil and Political Rights of 2018 recognised and protected the inherent right to life of all human beings. The UN Human Rights Committee of 2018 had remarked that, in terms of article 6, state parties had the responsibility to provide safe, legal, and effective access to abortion.
  27. India had also ratified the International Covenant on Economic, Social and Cultural Rights of 1966, which enumerated in detail the right to mental and physical health. India had also ratified the Convention on the Elimination of All Forms of Discrimination against Women of 1979. Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women required the state parties to take appropriate measures to eliminate discrimination against women in the field health care services in connection with family planning, pregnancy, confinement, and post-natal period.
  28. The state had to ensure that information regarding reproduction and safe sexual practices was disseminated to all parts of the population. Further, it had to see to it that all segments of society were able to access contraceptives to avoid unintended pregnancies and plan their families. Medical facilities and registered medical practitioners had to be present in each district and had to be affordable to all. The government had to ensure that registered medical practitioners treated all patients equally and sensitively. Treatment had not to be denied on the basis of one’s caste or due to other social or economic factors. It was only when those recommendations became a reality that the right to bodily autonomy and the right to dignity were capable of being realized.

Petition granted; High Court ruling set aside.

Relevance to Kenyan jurisprudence

The Constitution of Kenya, 2010, in article 28 speaks about human dignity when it highlights that every person has inherent dignity and the right to have that dignity respected and protected. Article 26 elucidates that abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.

Section 158 of the Penal Code Cap 63 [Rev 2012] stresses that any person who, with the intent to procure miscarriage of a woman, whether she is or is not with a child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for fourteen years. Section 159 echoes this as well by prohibiting abortion induced by the pregnant woman in any way and counts such as amounting to a felony attracting imprisonment for seven years.

In Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others; East Africa Center for Law & Justice & 6 others (Interested Party) & Women’s Link Worldwide & 2 others (Amicus Curiae) [2019] eKLR, the court held that women and girls in Kenya who find themselves pregnant as a result of sexual violence have a right, under Kenyan law, to have an abortion performed by a trained health professional if that health professional forms the opinion that the life or health of the mother is in danger.

The court in CK (suing through Ripples International as her guardian & next friend) & 11 others v Commissioner of Police / Inspector General of the National Police Service & 3 Others (2013) eKLR held that unconsented sex had health implications on the victim, including consequences of unwanted pregnancies.

The case of PAK & another v Attorney General & 3 others (Constitutional Petition E009 of 2020) [2022] KEHC 262 (KLR) (24 March 2022) (Judgment) dealt with, inter alia, the issue whether sections 154, 159 and 160 of the Penal Code that criminalised abortion were unconstitutional. The court held that where formal legal channels to abortion were lacking or inaccessible the victims (women) terminated their pregnancies by unscrupulous devices and substances. In abortion cases the pregnant women tended to avoid such medical examination on the ground that it violated the right to privacy or the right to human dignity as enshrined under articles 28 and 39 of the Constitution. There were no guidelines relating to privacy and on how to reach a trained health professional as stipulated in article 26(4) of the Constitution. The protection of unborn life was an important motive for restricting abortion, and the Kenyan Constitution at article 26(4) equated a pregnant woman’s life with continued fetal development thus making it as the single greatest impendent to medical abortion services.

Therefore, this case is vital to our Kenyan jurisprudence because it expands the concept of abortion rights as it holds that the right to dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate an unwanted pregnancy.





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