ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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The Primacy of Reproductive Autonomy

The Supreme Court of the United States, in a leaked opinion, has voted to overrule Roe v Wade. Hence, in light of this ruling, two among many other deficiencies in abortion jurisprudence in India need to be highlighted: (i) the analysis of the black letter of the law and the interpretation of the courts of the text of the Medical Termination of Pregnancy Act (MTPA), and (ii) the normative prescriptions to the existing framework of the statute.

First is the issue of seeking judicial authorisation for termination. Section 3 of the MTPA does not mandate pre-termination judicial authorisation; however, the courts have allowed the same. They either permit termination or constitute a medical board to decide on the same. There are two errors in this approach of the court—(i) the unwarranted intrusion of the courts into the sphere of the privacy of the women (bodily autonomy and decisional autonomy) and (ii) adding a layer of medicalisation even when there is no requirement mentioned in the statute. Medicalisation is a problem because, as seen in the case of Suchita Srivastava and Anr v Chandigarh Administration, the nature of questions asked and the responses by the medical board were mostly outside the realm of medicine. Hence, medical ideology is used as a technique to evaluate considerations of social parameters.

The normative prescription is to frame guidelines on the nature of the questions that can be referred to the medical board. The guidelines should explicitly mention that only those questions that are important for assessing the conditions mentioned in Section 3(2)(b) of the MTPA can be referred to the medical board. This will have the positive effect of excluding questions like that of the ideal mother and their financial means of sustaining the child. Thus, there will be a reduction in the scope of medical social control in cases of abortion.

Second is the issue of the scope of Section 5. If 24 weeks have elapsed, then the only situation in which termination can occur is when it is “immediately necessary to save the life of the woman.” However, courts have read the requirements mentioned in Sections 3(2)b(i) and 3(2)b(ii) into Section 5 of the MTPA. Though the end result of this might be a greater opportunity for women to undergo abortion, yet this directly goes against the requirement mentioned in Section 5. Since this erroneous interpretation results in greater autonomy for women, there should be some changes. Hence, an overhaul of the current regressive paternalistic approach prevalent in Sections 3 and 5 of the MTPA is called for. That is to say, barring certain procedural safeguards of having registered medical practitioners,

Any person should have the option of undergoing termination of pregnancy irrespective of the gestational period if

(i) There is an informed consent on the part of the person, and

(ii) Termination of pregnancy does not pose a grave risk to the life of the pregnant person.

This will have positive effects on the women’s reproductive autonomy, lessening the extent of medicalisation, and non-imposition of the rule-based limit of 24 weeks. Instead, a standard approach will be followed depending on the circumstances of the case.

There might be situations where an erroneous interpretation by courts leads to fruitful results. There is a need to tap into the positive effects of those results and accordingly make changes to the existing framework of the statute.

Manas Agrawal

Bengaluru

 

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Updated On : 28th May, 2022
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