MTP Act recognizes woman's sexual autonomy as part of right to life: Punjab and Haryana High Court

The Punjab and Haryana High Court on Monday observed that the Medical Termination of Pregnancy (MTP) Act recognizes the exercise of sexual autonomy by a woman as an integral part of her right to life..“The law recognizes the exercise of sexual autonomy by an individual as an integral part of an inviolate right conferred under Article 21 of the Constitution of India and is embodied in her right to life and for protection of her bodily integrity,” the Court said.Justice Vinod S Bhardwaj, however, said the exercise of such right also comes along with the responsibility to “discharge duties that arise on exercise of such an option.”“A person may be called upon to live with the consequences of the option exercised, when such consequences cannot be erased and are required to co-exist. The desirability of a circumstance cannot outweigh the reality of the circumstance,” the single-judge said..The Court made these observations while dealing with a petition moved by a class-XII student seeking termination of her 26 week pregnancy. The 18-year-old (petitioner) was in a consensual relationship with a boy a year ago. The Medical Board said the foetus would likely be born alive and thus recommended continuation of the pregnancy.Considering that the pregnancy had crossed the “cut off” period till which termination is allowed under the MTP Act, the Court did not allow the petitioner’s request.However, it directed the Rajindra Hospital at Patiala to determine whether the termination can be carried out without a a foeticide. .MTP Act permits termination of pregnancies by the two registered medical practitioners for up to 20 weeks. However, beyond 20 weeks till 24 weeks, only certain categories of women are allowed to terminate pregnancy.In this regard, Justice Bhardwaj examined Rule 3B of MTP (Amendment) Rules 2021 which provides for abortion till 24 weeks due to a change of marital status during the ongoing pregnancy and other reasons. .On the lines of observations made by Supreme Court in X Versus The Principal Secretary Health And Family Welfare Department & Anr, the Court opined that changed circumstances as available to a married woman would also subsist in favour of an unmarried woman parting ways with her partner.“A changed scenario, in terms of requirement has to presume a legal recognition of a relationship with her partner at par with a spousal relationship stipulated under Rule 3 B of the Rules of 2003 and that on existence of such circumstances which permit a married woman to seek termination of pregnancy, the Court may exercise its power to grant approval to medical termination of pregnancy even in case of an unmarried girl,” it said..After analysing the law and the rulings of the Supreme Court on the subject, Justice Bhardwaj considered whether an unmarried woman is entitled to seek termination of pregnancy when the same is a result of a consensual sexual relationship and the child does not suffer from any congenital deformity or pose any danger to the mother.The Court observed that the law at present takes into consideration only such pregnancies which are a result of sexual assault or sexual activities between married adults. “The same is silent with respect to the pregnancies as a result of consensual sexual relationship between consenting adults, who may not intend to get married and/or enter into a long lasting relationship but are in the process of exploring and exercising their sexual autonomy,” the Court remarked..The Court observed that the law cannot remain static or act as an impediment to block the changing social requirements.It added that an unmarried girl or a woman, who exercises her right to sexual autonomy, cannot be put to prejudice and be denied her consideration for seeking medical termination of pregnancy which such right is recognized for a married woman.“The Court cannot be indifferent to the plight of single woman/mother’s exercising a right recognized in law and to force them to live with the consequences of exercises of such right with no respite,” it added..The Court also opined that it could not have been the intent of the law that a woman should be compelled to register a rape case to have her entitlement to seek termination of pregnancy, recognized, “An interpretation that would compel the people to resort to an illegality for avoiding a relief would even otherwise be not desirable either by the Statute or by a Court of law,” it said.In this regard, the Court also observed that an unmarried woman or a single mother cannot be made to suffer social, physical, psychological and financial trauma merely “for having exercised her rightful autonomy.” .The Court also underscored that a woman cannot be compelled to disclose the name of her partner. “Her right of privacy and dignity empowers her to make a choice as to whether she would like to disclose the name of the partner or not and that the law cannot compel a woman to make public the name of the person who is the father of the foetus and/or the child”..18-year-old's request for termination of pregnancy rejected.Having recognized the petitioner’s right to seek medical termination, the Court proceeded to determine whether on the factual aspects of her case, such permission need to be granted.It found that in the majority of the cases cited by petitioner’s counsel where pregnancy was allowed to be terminated after 24 weeks, the pregnancy posed a threat to the mother or the child suffered from serious abnormalities..In the present case, the Court found the petitioner was already pregnant by 26 weeks when she approached the High Court and for carrying out the termination, the doctors would be required to carry out a foeticide.“It seemingly is on account of the aforesaid circumstances and to avoid committing of a feticide that the legislature decided a ‘cut off’ for pregnancy period before any such right/authority ought to be exercised,” the Court opined..It further said when a right is subject to certain procedural restrictions, an individual cannot claim an unbridled right in her favour and demand that notwithstanding the mandate of the MTP Act and the Rules of 2003, she is entitled to seek medical termination.“Invariably, in the process of carrying out a termination of the pregnancy, post expiry of 24 weeks, when a child is healthy and is grown, the implications and consequences have been segregated and consciously confined by the Legislature,” it added..Thus, the Court disallowed the petitioner’s prayer with a direction for consideration by the doctors against whether the termination could be carried out without foeticide.It further ordered that if the petitioner delivers the child, she would be asked whether she intends to keep it. In case she decides to not bring up the child, the newborn would be handed over to the Child Welfare Committee for further process including adoption..Senior Advocate Gaurav Chopra and advocates Shehbaz Thind, Gagandeep Singh, Jagraj Singh, Buta Singh, Rishabh Bajaj and Sanjana Makkar represented the petitionerAdvocate Vivek Saini was amicus curiae in the caseAdditional Advocate General Saurav Verma and Deputy Advocate General Aditya Sharda represented the State.[Read Judgment]