Ashima
CAN A PREGNANCY THAT IS A RESULT OF A FAILED CONTRACEPTIVE BE LEGALLY TERMINATED?
Ashima Ohri 30 Apr 2019

CAN A PREGNANCY THAT IS A RESULT OF A FAILED CONTRACEPTIVE BE LEGALLY TERMINATED?

 

Yes! If a pregnancy is the result of a failed contraceptive method, it is presumed to constitute a grave injury to the woman’s mental health and can, therefore, be legally terminated. However, the termination of a pregnancy is only permitted when the conditions specified in the Medical Termination of Pregnancy Act, 1971 (MTP Act) have been fulfilled.

 

In India, poor knowledge about abortion measures often forces teenagers and married women who can benefit from the provisions under the MTP Act to instead opt for unsafe methods of abortion. There are also situations where people and doctors confuse the provisions under the MTP Act and the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 (PCPNDT Act). The former allows termination of pregnancies under certain conditions while the latter outlaws sex-selective acts of termination of pregnancy. Lack of in-depth knowledge of these legal provisions often leaves women believing that they cannot legally terminate an unwanted pregnancy.

Abortion has been a very controversial subject in many societies through history on religious, moral, ethical, practical, and political grounds. Abortion continues to be banned in 26 countries across the globe, according to the Guttmacher Institute. Major economies such as Brazil, Mexico, Nigeria, Indonesia and the UAE are some of the countries that also do not allow abortions unless it is necessary to save the life of the pregnant woman.

However, 2018 was a glorious year for women in Ireland as the country voted in a referendum to repeal one of the world's strictest bans on abortion. Previously, abortion was illegal unless in the context of a medical emergency to save the mother's life. Hopefully, Ireland will pave way for other countries to recognise the need for women’s autonomy in making decisions about their own body and their sexual and reproductive health.

It is thus heartening to see that Indian laws are not as archaic in their approach and aim to emancipate its women-folk. The Supreme Court of India in its decision in the case of Z Vs. The State of Bihar and Ors. (civil appeal no.10463 of2017) clarified that there was no doubt that a woman's right to make reproductive choices was also a dimension of "personal liberty" as understood under Article 21 of the Constitution of India. It was important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration was that a woman's right to privacy, dignity and bodily integrity have to be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in a sexual activity or alternatively the insistence on the use of contraceptive methods. The Court further added that women were also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children. However, in the case of pregnant women, there is also a "compelling State interest" in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the provisions of the MTP Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices.

 

Explaining the provision of the Act, the Court opined that ordinarily a pregnancy can be terminated only when a medical practitioner is satisfied that a continuance of the pregnancy would involve risk to the life of the pregnant woman or of grave injury to her physical or mental health or when there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. While the satisfaction of one medical practitioner is required for terminating a pregnancy within twelve weeks of the gestation period, two medical practitioners must be satisfied with either of these grounds in order to terminate a pregnancy between twelve to twenty weeks of the gestation period.

The Court also took note of termination of the pregnancy when the same is the result of a rape or a failure of birth control methods since both of these eventualities have been equated with a grave injury to the mental health of a woman. The Court emphasized that in all such circumstances, the consent of the pregnant woman is an essential requirement for proceeding with the termination of pregnancy.

 

So, in a nutshell, a pregnant woman can seek and receive an abortion up to the twelfth week of the pregnancy with the opinion of one doctor and up to the twentieth week with the opinion of two doctors. The doctor must be of the opinion that the continuation of the pregnancy will involve a risk to the life of the pregnant woman or will be a grave injury to her physical or mental health. In order to get an abortion after the twenty-week timeframe has passed, one must go to the High Court or the Supreme Court, where either severe foetal abnormality or severe risk to the physical and/or mental health of the pregnant woman will have to be proved to be granted permission for termination of the pregnancy.

 

If the pregnancy is the result of rape or is the result of a failed contraceptive method, it is presumed to constitute a grave injury to mental health. It is important to note that an abortion is only legal if it is carried out at a hospital established or maintained by the government or a private practice approved by the government.

 

Of late it has been seen that many doctors erroneously refuse to carry out abortions as they are afraid that it may be seen as a sex-selective termination of pregnancy. Due to friction in the laws concerning abortion and sex-selection practices, pregnant women and girls who are within the twenty weeks of gestation, as required by law, are also increasingly being sent to seek judicial authorization for the medical termination pregnancy, even when it is a case that meets the requirements of the MTP Act.

 

Abortion and sex-selection practices are not the same things, and it is important for the public to know the difference so that they are better aware of their rights. Factually, it is only possible to determine the sex of a foetus after the twelfth week or the second trimester of pregnancy. This should ideally not interfere with one’s right to seek an abortion up to the twentieth week of pregnancy. If a doctor refuses to perform medical termination of pregnancy even when the pregnancy is within the twenty-week timeframe, one can file an RTI asking why services were refused or file a petition based on the misuse of legal provisions.

 

Another important aspect of the MTP Act is ‘Consent’. If a girl is a minor or in other words under the age of 18 years, then for the termination of the pregnancy the consent of a guardian (parent/carer) is required. If the woman is over 18 years of age, she does not require anybody’s consent for abortion, including that of her husband. Also, one does not have to be married to seek or receive an abortion.

 

Studies conducted by the World Health Organization have found that abortions are one of the safest medical procedures in this day and age, and yet unsafe abortions in India are the third leading cause of maternal deaths and cause 8 women to die each day. It is alarming to see that hundreds of thousands of women die from unsafe and illegal abortions because of no access to quality and safe abortion services, lack of knowledge or the overdrawn and slow legal processes. The undue delay and the laches in the law, dearth of registered and trained medical practitioners to take care of the country’s looming abortion requirements and other such practical issues concerning the medical termination of pregnancies have often rendered the provisions of the MTP Act useless.  

 

Another contributing factor to the women resorting to illegal abortions in India is also the regressive outlook of the society towards teenage pregnancies, pregnancies before marriage and even abortions in general. Most teenagers fear their guardians, so much so that it keeps them from seeking correct medical recourse. Dangers of unsafe medical procedures include infection, sepsis, heavy bleeding, unsuccessful abortions, and even death.  Our mindsets require sea attitudinal changes and our laws definitely need to be more facilitating. Nevertheless, women must ensure that they opt for safe and legal methods of terminating unwanted pregnancies or pregnancies that pose a health risk. Private abortion providers should be registered, if they are not, they are most certainly running an illegal establishment, not appropriately trained and therefore unsafe.

 

One of the ways in which some of these problems can be ironed out is to know and to actively spread the word about women’s health and human rights. Let’s shout from the rooftops that the Supreme Court of India recognizes women’s right to reproductive choice as part of the right to personal liberty and that the decisions around procreation are protected under the right to privacy. 

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