Right to Progeny and Right to Termination is a Fundamental Right under Article 21

While allowing a rape victim to terminate her pregnancy after twenty weeks of gestation, the Orissa High Court held that the right to progeny and its termination was a fundamental right enshrined under Article 21 of India’s Constitution.

The Court relied on Meera Santosh Pal vs Union of India where the Hon’ble Supreme Court held that a woman’s right to make a reproductive choice is a dimension of personal liberty under Article 21 of Constitution.

In the instant case, the victim was 21 weeks pregnant and as per Medical Termination of Pregnancy Act, a pregnancy of more than 20 weeks, cannot be permitted.

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However, the Court referred to Medical Termination of Pregnancy (Amendment) Bill, 2020( pending before the Rajya Sabha) according to which, pregnancies of up to 24 weeks, can be terminated.

The Court also remarked that with advancements in medical technology, the outer limit of pregnancy termination has increased, which is especially beneficial for vulnerable women and in cases where there are foetal abnormalities.

Hon’ble Judges observed that India has ratified the Elimination of All Forms of Discrimination Against Women in the year 1993 and was obligated to protect women’s reproductive choices.

Reference was also made to several cases where the Hon’ble Supreme Court had allowed pregnancy termination even after twenty-four weeks.

The Supreme Court had allowed termination of pregnancy in X & Ors. v. Union of India2016, X & Ors. v. Union of India 2017 and Suchita Srivastav & Anr vs Chandigarh Administration.

However, the Court noted that in the instant case, the victim was a minor. Still, victims’ consent should be recorded, and the medical board was directed to terminate the pregnancy only if there was no apparent danger to the victim’s life.

The Court gave the following reasons for passing the order mentioned above:-

  • As the victim was a minor, her health, mental well-being, and education might get affected if she had the child.
  • The victim will face social stigma, and as both the petitioner and the victim were from a humble background, it would be more difficult for them.
  • The unborn child will also be stigmatised and will be looked down upon by society.
  • Even though the 1971 Act does not allow the termination of pregnancy after 20 weeks, the new bill extends it to 24 weeks, and with advancements in medical technology, it would also be safer.
  • If the child were allowed to be born, the victim’s mental health problems would deteriorate further.
  • Even though the Medical Committee did not recommend termination because of Section 3 of the 1971 Act, they did not state that termination would harm the victim.

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