Right to progeny and termination thereof is a fundamental right under Article 21

Right to progeny and termination thereof is a fundamental right under Article 21

Gopal Pattnaik Vs State of Orissa

Orissa HC

15/12/2020

WPCRL No.68 of 2020

About/from the judgment:

While permitting a rape victim to terminate her pregnancy after 20 weeks of gestation, the High Court held that right to progeny and termination thereof is a fundamental right enshrined under Article 21 of the Constitution of India.

Reliance was placed on Meera Santosh Pal v. Union of India, (2017) 3 SCC 462, where the Supreme Court held that women's right to make reproductive choice is also a dimension of personal liberty as understood under Article-21 of the Constitution.

The victim in this case was 21 weeks pregnant and as per the existing Medical Termination of Pregnancy Act (MTP Act), medical termination of pregnancy more than 20 weeks old is not permitted.

The Court however referred to the Medical Termination of Pregnancy (Amendment) Bill, 2020, pending consideration before the Rajya Sabha, which allows for termination of pregnancies up to 24 weeks.

While the Bench acknowledged that the Bill is yet to be passed and cannot be considered as a law, it proceeded to observe,

"It is reflected that due to passage of time and advancement of medical technology for safe abortion there is a scope for increasing the outer limit for terminating pregnancy especially for vulnerable women and pregnancy with substantial foetal abnormalities detected late in pregnancy. Further there is also need for increasing access of women to legal and safe abortion in order to reduce the maternal mortality and morbidity caused by unsafe abortion and its complications."

The Bench then observed that India has ratified the Convention for Elimination of All Forms of Discrimination Against Women (CEDAW) in 1993 and is under an international obligation to ensure that the right of a women in reproductive choices is protected. It thus stated, "it is no doubt that right to progeny and termination thereof is a fundamental rights which springs from the right to life as enshrined under Article-21 of the Indian Constitution."

The Court also referred to a plethora of cases whereby the Supreme Court had permitted medical termination of pregnancy, even after 24 weeks.

In X & Ors. v. Union of India, (2017) 3 SCC 458, medical termination was allowed by the Supreme Court after 24 weeks of pregnancy as it involved grave risk to the life of the Petitioner and possible grave injury to her physical and mental health.

Similarly, in X. v. Union of India (2016) 14 SCC 382 medical termination of pregnancy of 23-24 weeks of a Rape victim was allowed by the Hon'ble Supreme Court to save the life of the woman.

Inter alia, the Bench emphasized on the need of taking the pregnant woman's (victim's) consent for medical termination of pregnancy (Suchita Srivastava & Anr. v. Chandigarh Administration).

The Court observed that even though the victim in the case at hand is a minor, as a measure of abundant caution, her consent must be recorded. It recorded the victim's desire to terminate the pregnancy and allowed the application.

The Bench directed the medical board to proceed with the medical termination of pregnancy of the victim, provided that there is no danger to her life.

The Court also stated the following reasons for the passing of this order:

-> The unwed mother (victim girl), is a minor and has to undergo the ignominy of an undesirable pregnancy. It will hamper her further physical and mental growth. It will also affect her future education prospects.
-> The social sigma the minor victim will face will be insurmountable in this case as the petitioner and his daughter belong to very humble walk of life.
-> The social sigma the unborn child will face is also a matter of great concern to us as the child will definitely be viewed with disdain and will be looked down upon as an undesirable child by his/ her peers in society.
-> Though law (as per the 1971 Act) does not allow medical termination pregnancy after 20 weeks, the Central Government in its wisdom has introduced a bill for enhancing this period to 24 weeks. From the statement and objects of the reasons of the Amendment Act of 2020, it is apparent that the present development of medical science makes it imperative for the amendment of provision of Section 3 of the Act to extend this permissible outer limit of pregnancy for termination.
-> The Medical committee in this case has also opined that the mental health problem of the victim may have adverse impact on the future of the victim on social ground.
-> The Committee has not recommended for termination in view of Sec-3 of the Act of 1971 but has not stated that termination of pregnancy at this stage will pose any threat to the life of the victim girl.

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