What is the Supremacy of Woman’s Autonomy in Matters of Abortion?

By Pranjul Dalela 14 Minutes Read


Article 21 of the Constitution of India affirms to every individual the Right to Life and Liberty. The Courts have deciphered the Article to fuse the Right to Reproductive choices. In particular, the Article allows a woman to pick whether she needs to duplicate or not. This Right isn’t all out and is compelled once a woman envisions, as there is a battling eagerness of the arranged youth.[1] 

On account of the above situation, the Indian laws don’t surrender women a complete right to embryo expulsion. Not in the least like the United States of America wherein a woman has the sole Reproductive rights till the detectable quality of her hatchling (around 24 weeks). In India, the choice of untimely birth exists just on occasions of a possible mental or physical injury, inside a period of 12 or 20 weeks of pregnancy. Notwithstanding the law stressing on giving women self-rule in issues of untimely birth, the preparation is clearly the reverse. The general example shows that utilizing definitive follies, the pros included endeavor their best to ensure that a woman doesn’t rashly end. The primary break open to the mishandled woman is a Court. 

The Rajasthan High Court Friday repeated that a lady’s “conceptive decision” is a central right, and attested that the major right of a youngster assault casualty to prematurely end her pregnancy “intensely outweighs” the privilege of the baby to be conceived. 

In doing so, the seat including Justice Pushpendra Singh Bhati and Sandeep Mehta put aside a request passed by a solitary appointed authority in October a year ago, when the court had held that the baby reserved an option to live under Article 21 of the Constitution.

Foetus’ right to the life-The case included a 17-year-old minor assault casualty who had moved toward a POCSO judge a year ago for premature birth. The lower court, in any case, denied her solicitation in September, taking note of that she had just crossed the 20-week pregnancy limit forced by the 1971 Act. 

The young lady at that point moved towards the high court, which in October a year ago dismissed her request while featuring the baby’s entitlement to life.[2] 

“Subsequently, the right to life of the baby is likewise required to be thought of. Right to life ensured by the Constitution of India under Article 21 of the Constitution of India, can’t be summoned for the casualty alone. Assurance of Article 21 is as much access to the youngster to be conceived, except if insurance of embryo represents a prominent danger to the life of the mother,[3]” the court had watched. It had then denied premature birth while permitting an application documented by an association called Navjeevan Sansthan to take care of the child. 

This request was presently tested under the watchful eye of a 2-judge seat of the court by the state government, “to ensure the privileges of the potential casualties”. The legislature asserted that the judge abused the major right of assault casualties to get a premature birth.

Law and the Reproductive Rights of Women in India-

Before talking about the judgment, a concise conversation on the law administering the privilege to foetus removal in India would be useful. As examined over, the Right to Life under Article 21 incorporates a lady’s restricted conceptive right with the basic thought being that a lady’s security, pride, and real honesty ought to be regarded.[4] 

The privilege of fetus removal/end is administered by the Medical Termination of Pregnancy Act, 1971 (“Act”)[5]. According to the Act, the justification for fetus removal is restricted to[6]

  • Where continuation of the pregnancy would make chance the life of the pregnant lady or cause grave injury to her physical or psychological well-being; or 
  • Where there exists a generous hazard that if the kid is conceived it would experience the ill effects of such physical or mental anomalies as to be genuinely impeded. 

It ought to be noticed that ‘assault’ is viewed as a demonstration that makes grave injury to the psychological well-being of a lady and thusly, origination because of a demonstration of assault is a ground to prematurely end[7]

Likewise, pregnancy because of the disappointment of contraception utilized by a wedded couple, is additionally viewed as a grave physical issue to the emotional well-being of the lady and is a ground to prematurely end. It ought to be noticed that such a ground is accessible just to restrict the number of youngsters, which implies that if the couple has no kids however the lady considers, it is impossible that this request would be permitted. 

A lady is permitted to prematurely end, just where the pregnancy doesn’t surpass twelve weeks (requiring accreditation by one clinical expert) or twenty weeks (requiring confirmation by two clinical specialists). In the event that the pregnancy surpasses a time of twenty weeks, the lady may move toward either the High Court or the Supreme Court for the consent to prematurely end (Meera Santosh Pal v. Association of India[8]). 

The ‘Wellbeing’ Test is applied for the intellectually hindered people wherein they evaluate the achievability of the pregnancy dependent on the clinical conclusion and the social conditions looked by the person in question. The hidden standard is that the strategy, which best serves the individual being referred to ought to be received. It ought to be noticed that dissimilar to an intellectually sick individual, the assent of an ‘intellectually hindered’ individual is required [9]

C. Key Takeaways from the Judgment-

The judgment has certain key points that can be very important for the future.

Perusing the “Right to Avoid” under Article 21

The Court in arriving at its decision considered the planned social shame, the sentiment of regret, and the grave state of mind a casualty of assault would experience on the off chance that she is approached to proceed with the pregnancy, in spite of her desires. The Court additionally opined that a survivor of assault has a ‘Central Right to Avoid’ the eventual outcomes of the Pregnancy. Thus, the Court expressly perceived the standards underlined in the Act, which will help future casualties in moving toward the Court and ending such pregnancies, on the off chance that they wish to. 

The Guidelines set down- 

Notwithstanding perceiving the ‘Option to Avoid’of assault casualties, the Court set down critical rules to be compulsorily trailed by the specialists in question, which will guarantee that such a shocking case isn’t rehashed. It laid down the following guidelines: 

  • State government will outline rules to guarantee that casualties of assault who are impregnated by rape are given ideal lawful and clinical offices to practice their regenerative decisions; 
  • Once the rape is accounted for, the Medical Officer/Station House Officer of the Police Station will advance a report to the District Legal Service Authority to move toward the person in question and sharpen her about the cures under the Act. 
  • A choice on a convenient application for the end of pregnancy submitted to a suitable position will be taken inside three days of the accommodation. 
  • Notwithstanding the above mentioned, the Court legitimately struck down the perceptions made against the minor’s mom. It commented that such a perception was unjustifiable and stigmatic to the casualty’s mom.


In India, a pregnancy can be lawfully ended in restricted cases by either a survivor of assault or a minor or by a wedded lady (utilizing the ground of bombed contraception). Indeed, even an unmarried lady has no such right, which focuses on the backward attitude of our arrangement producers who offer incomparability to sparing the life of the unborn far beyond the self-sufficiency of the lady. One can just consider what reality the unborn will have if her/his introduction to the world was constrained on the mother. In such cases, the law in America is commendable. 

Unfortunately, it is hard for a lady to try and exercise this restricted right of end given the brutal real factors in the nation. For example, given the inclination against fetus removal, in a few cases, the application for the end is caught in the managerial system, just to guarantee that the time of 20 weeks is crossed. In Z v. Province of Bihar[10], the casualty communicated her craving for ending the pregnancy on 04.03.2017 (around 17 weeks pregnant) yet at long last, the issue was chosen 26.04.2017 when she was 24 weeks pregnant. The said delay was caused because of the clinic’s refusal to end, the pendency of the Medical Report, intermissions in hearing, and so forth. The Supreme Courts says:

“It must be borne as a primary concern that component of time is incredibly critical for a situation of pregnancy as consistently matters and, in this manner, the emergency clinics ought to be completely cautious and rewarding doctors ought to be all around encouraged to maintain complemented affectability with the goal that the privileges of a lady isn’t upset.” 

Further, the Courts have indicated a pattern of requesting the constitution of a few Medical Boards for discovering the wellbeing of the lady being referred to. For example, in the current judgment, regardless of a clinical assessment being completed by the Chief Medical Officer, a subsequent assessment was requested by the Single Judge. Different assessments of the casualty just add to the deferral in choosing her application, along these lines hampering her odds of getting an end.

[1] Randy  Alcorn,  Prolife  Answers  to  Prochoice  Arguments  (Expanded  and  Updated  Ed.)  Portland: Multnomah Publishers, p. 55.
[2]Jed Rubenfeld (1991), On the status of the Proposition that “Life Begins at Conception”, Stanford Law Review, 43, p. 621.
[3] John  Harris  &  Soren  Holm  (2003)  Abortion.  In  Hugh  La  Follette  (Ed.)  The  Oxford  Handbook of Practical Ethics, Oxford: Oxford University Press. p. 29.
[4] Gender and Reproductive rights home page. Availableat:http://who.int/reproductive-health/gender/index.html. Acessedon 10-07-2020.
[5] The Medical Termination Of Pregnancy Act, 1971, http://tcw.nic.in/Acts/MTP-Act-1971.pdf
[6] Reproductive Rights and choice: The role of abortionin India. Published by International center for research on women (ICRW), Information Bulletin.
[7] World Health Organization. Safe abortion: technicaland   policy   guidance   for   health   systems.Women’sHealth Journal April1, 20.
[9] Source Link, (2009) 9 SCC 1.
[10] Source Link.

Related Posts