Not US, but Indian Women can take "Pregnant" decision : Adv. ROHiT Erande. ©

  *Woman( in India) , whether married or not, has right to get Pregnant as well as right not to get Pregnant*

*Adv. ROHiT Erande. ©*

The US Supreme Court , by Majority, on 24/06/2022 ruled in favor of a strict Mississippi abortion law, in the process overruling Roe v. Wade, the landmark case that has been the basis for legal abortions across America for nearly half a century. This Judgement has been widely criticised across the Globe. 

It's been said that one has a licence to Kill in USA, but not to decide about your own Body !!

On this background, it's interesting to see the Pragmatic view taken by Indian Judiciary. The observations of Indian Judges are worth reading.

*The Court said, "Why always women should suffer ?.. "*

*The right to control their own body and fertility and motherhood choices should be left to the women alone. *

*The Woman may be married or living in live-in relationship*

*A woman's decision to terminate a pregnancy is not a frivolous one. Abortion is often the only way out of a very difficult situation for a woman.*

The Hon. Bombay High Court in its judgment delivered in "Suo Moto" PIL (bearing no.1/2016) (Coram -SMT. V.K. TAHILRAMANI & MRS. MRIDULA BHATKAR, JJ ) has paved way to right of women regarding Abortion or MTP, irrespective of their marital status..

Link for Judgment.

https://indiankanoon.org/doc/138003226

Facts in nutshell :

1. It all began when an under-trial prisoner in Byculla prison namely Shahana gave a requisition for obtaining permission to terminate her pregnancy. The requisition given by Shahana was made part of this PIL.

2. Shahana represented that she already has a five months old baby and the baby was suffering from convulsion / epilepsy, hernia, loose motion as well as fever. Sahana's health was also not up to the mark and in such situation, she wanted to terminate her pregnancy.

3. The hon. Court after due enquiry, which was made by the ld. Sessions judge at the instance of High Court, allowed Shahana to terminate her pregnancy and necessary directions were issued forthwith to all the concerned officers and Medical Officers.

4. The Court also has given various directions in order to deal with health issues of women prisoners and especially pregnant women prisoners, in Para-25 of the judgment.

5. As per current MTP Act, pregnancy can be terminated upto 20 weeks and not after that. As per the Law, if 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 health risk to the child to be borne, then MTP can be done, with the prior opinion of a registered Medical Practitioner.

( However recently the MTP Act has been amended and one of the important amended provision provides    for special categories of women even upto 24 weeks abortion is allowed. Prior to that Hon. Apex Court in appropriate cases allowed MTP beyond 20 weeks)

6. If the Pregnancy is caused by Rape or due to failure of any device or method used for family planning, it's considered as grave injury to the mental health of the pregnant woman. Here Court said the benefit of explanation of failure of family planning methods is required to be extended to the woman living in live-in-relationship.

7. In case of a pregnant woman who is less than 18 years of age or is mentally ill, written consent of her guardian for MTP is must.

The Court further observed...

*A woman irrespective of her marital status can be pregnant either by choice or it can be an unwanted pregnancy. To be pregnant is a natural phenomenon for which woman and man both are responsible. Wanted pregnancy is shared equally, however, when it is an accident or unwanted, then the man may not be there to share the burden but it may only be the woman on whom the burden falls.*

*If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman's bodily integrity and aggravates her mental trauma which would be deleterious to her mental health.*

Incidentally, it reminds me another landmark judgement of *UK Supreme Court*.

"Giving birth in the "natural" and traditional way or giving birth by caesarean section (unless she lacks the legal capacity to decide) " is the choice of a Pregnant woman... "Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being."*

 In a Landmark and interesting judgment delivered on 11th March, 2015 in the case of Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland), the UK Supreme Court allowed the appeal of Mrs. Montgomery.

This is indeed an important and pathbreaking decision of Bombay High Court.. Now a days a man and a woman may stay in live in relationship and it's no more a taboo.... They have consensus sex, But if the woman becomes pregnant then she alone has to carry the burden.. So the High Court has come to the rescue of such women..

However if a woman less than 18 years of age becomes pregnant, then Doctors are bound by POSCO Act to inform the Police..

Ironically, As the ban has been imposed, reportedly there is steep increase in Abortion Pills.

What all I can say is Thanks to Indian judiciary !!

Thanks and regards.

Adv. Rohit Erande

Pune.©