SC says consent of husband not needed for abortion: Progressive judgment but concerns abound

The Supreme Court, last week, ruled that abortion is an exclusive right for women. The Bench which consisted of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud dismissed a civil appeal, pending since 2012, that sought to identify and fortify husband’s consent to terminate a pregnancy.

The matter in the appeal revolved around a case where the woman had separated from her husband and had subsequently terminated her pregnancy, using the Medical Termination of Pregnancy Act, 1971 without his consent. The apex court upheld the 2011 ruling by the Punjab and Haryana High Court stating that the woman’s family and doctors cannot be held liable for an abortion that was legal.

Abortion. File image of Supreme Court. AP

File image of the Supreme Court. AP

This judgment comes after the Supreme Court observed in July that “[a] woman has a sacrosanct right to her bodily integrity and it’s her choice” to abort her 26-week old foetus with grave abnormalities. The Bench in the present case stated that an adult woman had an impeachable right to give birth or terminate her pregnancy.

Chief Justice Misra also added: “She is a mother and an adult who says she did not want the pregnancy. How can she or others be made liable for it? Even a mentally challenged woman has a right to terminate her pregnancy. How can parents and doctors be made liable?”

The couple got married in 1994 and had a son in 1995. The case began with matrimonial discord in 1999 between the husband and wife and this resulted in their separation – the wife moved out to live with her parents and took her minor soon with her. Afterwards, the wife filed an application under Section 125 CrPC claiming maintenance from the husband. During the pendency of this application, the Lok Adalat in Chandigarh mediated and cajoled the couple to live together in the husband’s house. It was during this period in January 2003 that she discovered that she was pregnant. The differences between her and her husband remained, and the relationship had shown no signs of recovery; the wife was determined to terminate her pregnancy.

The husband refused to sign the papers that indicated his consent to such a termination and filed a suit for a mandatory injunction restraining the wife from the procedure. The wife underwent a procedure under the Medical Termination of Pregnancy Act (MTPA) without the consent of her husband and the suit was withdrawn. Later the husband filed a civil suit for the recovery of Rs 30 lakhs towards damages stating that he was under mental pain, agony and was subjected to harassment by his estranged wife, her parents, brother and the doctors who performed the procedure under MTPA.

The suit was based on the fact that the termination of pregnancy using the MTPA was done without the “specific consent” of the father and was performed in connivance with the respondents; he argued that the termination of pregnancy under the MTPA was illegal without the consent of the father of the unborn child.

Before the case came to the Supreme Court, in 2011, the Punjab and Haryana High Court stated that under Section 3(4)(b) of the MTPA, the consent of the pregnant woman, who was undergoing the procedure, was needed – “An unwanted pregnancy as per Explanation II to Section 3(2) of the Act is a grave injury to the physical or mental health of the woman.”

The high court also added that Section 5(1) of the MTPA would not be attracted here because the wife was well-qualified, of sound mind and was the mother of a grown-up child. Justice Jitendra Chauhan of the Punjab and Haryana High Court stated, “The husband cannot compel her to conceive and give birth to his child. Mere consent to conjugal rights does not mean consent to give birth to a child for her husband. The wife did so in order to strengthen the matrimonial ties […] The wife is the best judge and is to see whether she wants to continue the pregnancy or to get it aborted. When the husband has no right to compel her wife, not to get the pregnancy terminated, he has no right to sue her wife for compensation,”

“The husband also has no cause of action against his wife on this account. Keeping in view the strained relations between the husband and wife, the decision of the wife to get the termination of an unwanted foetus was right. It was not the act of termination of pregnancy, due to which relation became sour, but the relations between the husband and the wife were already strained. So, keeping in view the legal position, it is held that no express or implied consent of the husband is required for getting the pregnancy terminated under the Act,” Chauhan said.

The high court also stated that an unwanted pregnancy would negatively affect the mental health of a woman: “The woman is not a machine in which raw material is put and a finished product comes out. She should be mentally prepared to give birth to a child.” The Supreme Court upheld the rulings made by the high court in this case and stated explicitly that the consent of the husband is not mandatory for the termination of pregnancy.

By upholding women’s right to undergo medical termination of pregnancy, the Supreme Court has indicated that when it stated that a woman has a sacrosanct right to her bodily integrity, it did not make an empty, meaningless remark. The apex court upholds the agency of a woman to choose what happens to her body.

However, there are certain glaring problems in the judgment that one must make a mention of. For instance, it is assumed that only married women would want to resort to the MTPA; the word, ‘husband’ instead of ‘biological father’ is jarring as is the judgment’s fixation on conjugal or matrimonial sex with the husband. “In the present case, the wife knew her conjugal duties towards her husband. Consequently, if the wife has consented to matrimonial sex and created sexual relations with her own husband, it does not mean that she has consented to conceive a child.” This harping upon conjugal sex as the duty of a married woman by the judiciary is disturbing given that the Delhi High Court is in the midst of deciding a marital rape case.

More importantly, it would be significant to point out there was not any requirement in the MTPA for the consent of the husband for the termination of pregnancy. Under the Act, it has always been a prerogative of the pregnant woman, and the right is limited by certain conditions such as the length of the pregnancy.

The permissible limit for termination under the Act is 20 weeks, though in recent cases, the Supreme Court has allowed terminations at 24 and 26 weeks. Under the Act, even pregnant rape victims cannot terminate a pregnancy after 20 weeks and are compelled to move court.

Another issue that the court could have brought up and dealt with is the involvement of a medical board when the termination of pregnancy has to be considered beyond the permissible limit. A medical board is constituted at the direction of the courts and this board examines and considers in good faith if aborting the foetus is necessary to save the life of the pregnant woman.

There are no strict indicators that the medical board follows in making a recommendation, and past cases have shown that its recommendations are often arbitrary. For instance, in R versus Haryana, the medical board had not recommended termination and the Punjab and Haryana High Court had denied the right of abortion to a petitioner who was a rape survivor.

For a judgment that was considering a woman’s right to her bodily integrity and her right to terminate a pregnancy, the role of the medical board would be a pertinent question to scrutinise, especially because when speaking about a right, it is also important to examine the boundaries of such a right.

In my opinion, the judgment is progressive but leaves out many significant aspects of the MTPA that influence the right of a woman to choose.

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