Pregnancy is like an event in India. We celebrate. Ahh, Condition applies: only if it is within marriage. We don’t appreciate pregnancy outside marriage. That’s not sanskari at all. But what If somebody is pregnant outside marriage? Hmm…bear it then. There’s no matter of choice if you are pregnant (except in extremely rare cases which are mentioned later in this write-up).
BUT, did not Supreme Court passed the judgment to count Right to Privacy under the fundamental rights of Indian citizens under Article 21 of the constitution, which deals with the right to life and liberty? Yes, it did. It was stated under the judgment that privacy “allows each human being to be left alone in a core which is inviolable.”
Is not pregnancy one’s private matter? Is not the state interfering in the bodily matter of one person when it is not permitting the same person to abort? And thus, is this interference in the bodily matter not violating one’s privacy?
If yes, then, what does this judgment mean for India’s abortion law?
When can you abort a child and when can you not?
No, we just can’t let you abort just because you desire for it. Give us a reason, and we’ll see.
A woman who is up to 12 weeks pregnant may abort with the approval of one “registered medical practitioner.” Also, a woman who is between 12 to 20 weeks pregnant may abort a child as well, but only after the approval of two medical practitioners. Medical practitioners are only permitted to grant abortions only is the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health”; if the child would suffer from severe “physical or mental abnormalities”; if the pregnancy was caused by rape; or, finally, if the pregnancy “occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children.”
However, the act does not allow aborting only if a woman is simply unprepared to have a child or because of career-related reasons or financial or emotional reasons. Also, the MTP Act would not permit abortion if an unmarried woman becomes pregnant due to a failure in contraception since it specifically refers to a failure “of any device or method used by any married woman or her husband.” Also, if a pregnancy by rape is discovered after 20 weeks, then there may be complications with regard to abortion. For instance, in August 2017, a Chandigarh girl who was repeatedly raped by her uncle gave birth to a baby. When she complained stomach ache, she was taken to the hospital where it was discovered that the girl was over 30 weeks pregnant. The parents filed a PIL in Supreme Court for abortion but the apex court rejected the PIL also considering the reports according to which “abortion was neither good for the girl nor for the fetus.”
And, most importantly, there’s nothing called marital rape in our dictionary. So, if you are a victim of the same and is pregnant, good luck!
How is this violation of privacy?
Though there is no legal explanation of the term ‘Privacy’ but its aspects can be personal autonomy, informational self-determination, bodily integrity, protection from state surveillance, dignity, confidentiality, compelled speech and freedom to dissent or move or think.
If we take bodily integrity as a matter of one’s privacy then is not MTP Act questioning women’s autonomy over her own body? Though MTP provides the cases under which abortion can be done but even then it could be done only after the approval from a medical practitioner. Thus her private decision is not actually a private decision but is ‘approved’ by these medical practitioners. Therefore, it can be argued that there’s no freedom of women over her own body. The act interferes in the privacy of women.
Justice J Chelameswar wrote:
Concerns of privacy arise when the State seeks to intrude into the body of subjects. Woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy.
What if a pregnancy is caused because of the failure of contraceptive? Is this pregnancy not caused by an accident? Of course, it is. But even then you cannot get your child aborted. A woman must be given a right to make choice if she wishes to carry on the pregnancy or not. It is her private matter.
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