Authored by Shashwat Bhutani, a 4th year student of Faculty of Law, University of Allahabad.
With the advancement of medical technology and women right’s movement, abortion has become one of the highly debated topics of today’s times. At one hand, there is Right of a woman to make a reproductive choice, which stems from her Right to privacy, dignity, health, and bodily integrity, while on the other hand is the life of an unborn child, which is protected by the state in the form of state interest. This results in a scrimmage between the two interests and hence, a balance needs to be struck.
In India, this balance is more in favour of the state. The interest of the state in protecting the life of the unborn child outweighs the right of women to make reproductive choice. Further, the state acquires this interest from the moment of conception. As a result, the Medical Termination of Pregnancy Act, 1971 (hereafter “MTP Act”), which represents the state’s interest, also finds its application from that very moment. Thus, women cannot exercise complete bodily autonomy at any point in their pregnancy. In this paper, we will try to truly strike a balance between these two compelling interests and allow women to have, at least some time, to enjoy complete bodily autonomy and make decisions on their pregnancies. However, we will not be dealing with the provisions of the MTP Act as such. Instead, we’ll only argue for the postponement of the substantive conditions of Section 3 of the Act.
Decisions so far
In the case of Suchita Srivastava v. State (UT of Chandigarh), the Apex Court held that a woman’s right to make a reproductive choice is also a dimension of her “personal liberty” under Article 21 of the Constitution. This means that there should be no restrictions on the exercise of reproductive choice of a woman, such as the right to refuse participation in sexual activity or alternatively the insistence on the use of contraceptive methods. Furthermore, women are also free to choose birth control methods such as undergoing sterilization procedures, etc. Thus, the reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth, and to subsequently raise children.
However, even after expounding this right of women to a large extent, the court refused to grant autonomy to women to terminate their pregnancy at will. The Court restricted this right by stating that Fundamental Rights can be restricted subject to a “compelling state interest”. In case of a pregnant woman, the state has an interest in protecting the life of the prospective child. Thus, a woman’s right to terminate her pregnancy is subject to the state interest and hence she can’t exercise this right without the permission of the state.
The state in this regard has laid down the conditions under the MTP Act and the MTP rules to enforce its interest. Therefore, the termination of pregnancy is only permitted when the conditions of the MTP Act are fulfilled. Hence, the provisions of the MTP Act, 1971 can be seen as reasonable restrictions that have been placed on the exercise of reproductive choices.
A new approach
We have noted in the Suchita Srivastava’s case that the state acquires an interest in protecting the life of the child from the moment of conception. This is also evident from the provisions of the MTP Act, as the restrictions of the act get applicable from the moment of conception. As a result, women cannot terminate their pregnancies at their will, even when the pregnancy is recent.
In the author’s view, it is problematic because a conceptus in its early days is merely a bunch of cells with no human characteristics. It is only after reaching a particular stage that it starts exhibiting human characteristics. Therefore, it is submitted that only after reaching that particular state of development, the state’s interest must outweigh the women’s right to make the reproductive choice. But now the question arises, what is the stage at which a conceptus acquires human characteristics? Here, the author would like to draw attention to a few scientific studies based on which this question can be answered.
Recently, an international team of biologists led by The University of Western Australia (UWA) in association with the Spanish National Research Council and Radboud University, published a discovery in the journal Nature Genetics, according to which the embryos of many different kinds of animals: mammals (including humans), birds, reptiles, fish, etc. are fundamentally the same and the morphological differences exist only at the genetic level. It further stated that it is only after the 8th week that Human-like traits start appearing in an unborn child.
So, based on this report, it is contended that a conceptus, only after 8 weeks of gestation, starts acquiring human characteristics that continue to develop until it is born.
The author, therefore, submits that a classification must be made between the conceptus before 8 weeks of gestation and the conceptus after 8 weeks of gestation. After doing this, the test of proportionality should be applied at both the stages to balance the interest of the state and the women which we will now discuss.
The new test
The Court, in its earlier judgment, has relied upon the compelling state interest test to restrict the Right of women to make the reproductive choice. However, after the Puttaswamy judgment, the compelling state interest test was replaced with the proportionality test. So, after this judgment, the test to determine the validity of an infringing law is the test of proportionality.
It is interesting to note that the proportionality test adopted in India is a unique mixture of both German & Canadian tests of proportionality. This test was best defined by Justice Sanjay Kishan Kaul in the Puttaswami case, who stated that, in order to determine whether the state’s action is legitimate, the following conditions must be satisfied;
(a) The measure restricting a right must have a legitimate goal.
(b) There must be suitable means of furthering that goal.
(c) There must not be any less restrictive but equally effective alternative.
(d) The measure must not have a disproportionate impact on the right holder.
The first limb of this test states that the State must have a legitimate aim which it seeks to fulfil. The second limb states that the state must a rational nexus between the objective of the state and means adopted by it. The third limb resembles the narrow-tailoring limb of the strict scrutiny test and states that there must not be any less restrictive but equally effective alternative. In other words, there must be a necessity for adopting that step. The fourth limb of this test is unique and it requires the Court to balance the importance of the State interest on one hand, with the importance of the right or the extent of its intrusion of that right, on the other. With this in mind, we shall now proceed to apply the doctrine of proportionality in case of a pregnant woman.
Application of Doctrine of Proportionality
Before 8 weeks: At this stage, the conceptus is not developed enough and does not have any human characteristics. So, when the proportionality test is applied:
1st limb (legitimate state goal)- The state has a legitimate sate aim to protect the life of the unborn child. Hence, the test is passed.
2nd limb (rational nexus)- The state wants to protect the life of an unborn child by restricting the mother’s right to make a reproductive choice. Thus, there is a rational nexus between protecting the life of the unborn child and restricting the right of the mother to make a reproductive choice. Hence, the test is passed.
3rd limb (necessity stage)- The state has no other alternative to save the life of the unborn child and it is pertinent to stop the mother from exercising her right. Hence, the test is passed.
4th limb (balancing test)- When the balancing test is applied, the author submits that the women’s right to make a reproductive choice should outweigh the state interest as the conceptus has yet not acquired human characteristics. By doing so, women can have complete autonomy over their bodies, for 8 weeks. This period of 8 weeks will serve a great purpose as it will give women time to decide upon their unwanted pregnancies, do family planning, etc.
Now, in order to achieve this, the application of Section 3 of the Act, which prescribes the substantive conditions of Medical Termination of Pregnancy, should be postponed by 8 weeks.
It is to be noted that the author here is not suggesting that before the completion of 8 weeks of gestation, the state should not have any interest in protecting the life of the unborn child. It is submitted that the state should have an interest in protecting the life of the child, however, this interest will be subject to the women’s right to make the reproductive choice.
After 8 weeks: At this stage, when the proportionality test is applied, the result of the first three limbs will remain the same. However, when the 4th test is applied, the state interest will outweigh the Right to make the reproductive choice of women because now the conceptus has started acquiring human characteristics. Therefore, the conditions of the MTP Act shall begin to apply.
This approach is similar to the viability concept evolved by the United States Supreme Court in its famous judgment of Roe vs Wade. According to this concept, a mother has a right to abortion until viability. After this point, abortion is done only for health purposes. This point of viability is pegged between 24 to 28 weeks by the Pain-Capable Unborn Child Protection Act, 2019, and is based on the consciousness level of the fetus to feel the pain. However, in the author’s view, this ground for fixing the viability point is not correct. It is because the state is interested in protecting the life of a human being and such interest is not based on the fact whether that person can feel pain or not. Thus, the state interest must accrue when the conceptus starts acquiring human characteristics i.e. after 8 weeks and not when it can start feeling pain.
The Right of a woman to make a reproductive choice forms a part of her Right to privacy and includes bodily autonomy. In order to make this right available to a woman, in its actual sense, she must be allowed to terminate their pregnancy at will, until the expiry of 8 weeks of gestation. By doing this, she can have at least some time to decide upon her pregnancy, which forms an essential part of her bodily autonomy. The American Supreme Court also, in Planned Parenthood v. Casey, observed that “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
Therefore, it is high time for our Hon’ble Courts to re-examine the validity of the conditions of the MTP Act, in light of recent scientific developments. Further, the legislature must also amend the MTP Act to provide women with time to exercise bodily autonomy, which in author’s view, should be 8 weeks.