ABORTION IS A HUMAN RIGHT
The right of a girl / women to bear a child or terminate a pregnancy is a human right, which has been recognized all over the world. In India miscarriage without the consent of the woman concerned is punishable under Chapter 16 of the Indian Penal Code. However, “The Medical Termination of Pregnancy Act” provides for termination of pregnancy with certain terms and conditions by the authorized doctors of a government hospital provided (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 there is a substantial risk that if the child were born, it would suffer from such physical deformity.
The Madurai Bench of Madras High Court in Marimuthu Vs. The Inspector of Police dismissed a Writ Petition filed by the father of a minor girl praying for termination of her pregnancy without her consent. It was alleged by the father that his daughter had been kidnapped and raped by a boy. The girl controverted the above allegations, pleaded her friendship with the boy and expressed her desire to carry the pregnancy. The High Court upheld the desire of the girl and rejected the petition.
Whereas it is a dream come true for every girl/women to bear a pregnancy and then deliver a baby, for some unfortunate females it entails physical torture and mental agony and in a case like the one referred to as below it is bound to be an irony of fate that an unwanted child was required to be delivered with all post delivery responsibilities, or say birth care i.e. nursing the child, caring and bringing him/her up.
Abortion as a human right has been very strongly approved of by the Hon’ble Chief Justice of India (CJI) Mr. Justice Dipak Misra in C.A. No. 10463 of 2017, Z Vs. The State of Bihar.
Basics of the case
The appellant, a woman 35 years of age has been substituted as Z. She was a destitute and living on the foot path in Phulwarisharif, Patna. On 25th Jan, 2017 she was brought to a Women Rehabilitation Centre “Shanti Kutir” and her medical test revealed that she was pregnant. On 8th Feb, 2017 an ultrasound test disclosed her pregnancy to be of 13 weeks and 6 days. On 4th Mar, 2017 she expressed her desire to terminate the pregnancy with the averment that she had been raped. On 14th Mar, 2017, her father and brother also consented to her desire for termination of pregnancy but the Superintendent of Patna Medical College and Hospital turned down the request on the ground that her pregnancy was of more than 17 weeks and involved complications such as bleeding etc as also on the ground that a divorce petition had been filed by her husband. Her father and brother declined to take her with them because of social and financial constraints. Further with 20 weeks old pregnancy, the appellant was found to be HIV +ve.
How the case moved
As the pregnancy was not terminated, the appellant approached the High Court in C.W.J.C. No. 5286 of 2017 with the prayer along with a direction for termination of pregnancy as she had been sexually assaulted and further she was HIV +ve.
The High Court impleaded her husband and father as the Respondents and the woman was referred to the Director of Indira Gandhi Institute of Medical Sciences, Patna (IGIMS). As per direction of the Learned Single Judge, a board was constituted to assess the physical and mental condition of the writ petitioner and the fetus.
By the time all the reports reached before the High Court, the unfortunate victim of the rape was carrying a pregnancy of 24 weeks. Having regard to this duration of gestation, the Hospital Authorities declined to terminate the pregnancy as it involved complications and a risk to the life of the fetus. The High Court decided the matter on 26.04.2017 and rejected the prayer of the appellant. This rejection order was challenged in the Supreme Court on 3rd May, 2017 and once again a Medical Board at AIIMS had examined her on the direction of the Apex Court and the medical board decided that the procedure involved in termination of the pregnancy was likely to pose a risk to her life and the fetus in the womb. It was suggested that she should continue HAART therapy and routine antenatal care to reduce the risk of HIV transmission to the fetus.
Vide order dated 9th May, 2017 of the Apex Court, the appellant was sent back to Patna with appropriate arrangements to be made by the Union of India for her care. In these unforeseen circumstances the appellant’s learned counsel prayed for compensation from the State Government under the public law remedy as the Medical Authorities of Patna Hospital have not acted with quite promptitude in terminating the pregnancy, as a consequence of which, the appellant had been compelled to lead a life of terrible agony and anguish. It was pleaded further that her family members abandoned her to her fate because of social stigma and financial constraints. It was also argued on behalf of the appellant that the approach of the High Court in delaying the matter was wholly fallacious. In other words, the Hospital and the High Court both were criticized for the slackness on their part in dealing with the matter. They failed to appreciate that the woman was a destitute, a victim of rape, helpless and though slightly suffering from mental retardation yet fully capable of giving her consent for termination of her unwanted pregnancy. The High Court’s order was termed to be as suffering from lack of sensitivity.
Supreme Court’s decision & its observations
Hon’ble Mr. Justice Dipak Misra dictating the judgment for the court, observed that the approach of the High Court was completely erroneous. Though the IGIMS doctors submitted that there might be complications after termination of pregnancy such as bleeding, sepsis but there was no report that termination could be risky to the life of the appellant. The High Court also did not fetch a specific report about risk to her life. Also it was observed that Patna Medical College & Hospital was definitely a place where pregnancy could be terminated. The appellant had suffered a grave mental injury. The Apex Court had also concluded that the consent of a woman for termination of pregnancy is a personal autonomy which should be accorded due respect as it carries a sanctity of the dignity of a woman. A reference was also made to the United Nations Declaration on the rights of Mentally Retarded Persons 1971 which recognizes the meaningful respect of the mentally retarded persons who are above the age of majority and in a position to take a decision for their dignity. Regard being had to be facts and circumstances of the case, the best medical facilities were provided for by the Hon’ble Apex Court during gestation period as well as for the post-natal care. A sum of Rs. 10 lacs (under Section 357-A Cr.P.C.) besides Rs. 3 lacs having been paid earlier was awarded as compensation for the victim and the child’s future. Directions were also issued for proper treatment and nutrition of the child at the expenses of the State. Thus the Hon’ble CJI understood and appreciated the sensitive nature of the issue. His Lordship has indirectly made an endeavour to console the victim and inspired her to face the unforeseen situation which was irreversible. Hon’ble CJI snubbed the State of Bihar when it was argued on its behalf that State could not be held responsible for latches of the High Court and the laxity of the Hospital Authorities. Virtually the Doctors at Patna Medical were censured by the Hon’ble CJI. His Lordship imparted lessons of wisdom to the Single Judge of High Court, who dismissed the petitions and issued directions that such sensitive issues should be promptly dealt with as everyday matters where termination of a pregnancy was sought and since the fundamental concept relating to bodily integrity, personal autonomy and sovereignty over her body have to be given requisite respect, consent of the woman alone without waiting for family members is more than enough.
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Justice Bhanwar Singh
Former Judge, Allahabad High Court