Choice matters

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Choice matters

Thursday, 19 August 2021 | Pioneer

Choice matters

The Bombay HC has allowed a case of abortion, according priority to the mother’s mental health

Wednesday’s judgment of the Bombay High Court granting a woman to abort her 23-week-old healthy foetus on her plea that its continuance would inflict mental trauma on her is welcome. It has far-reaching implications for Indian women terminating pregnancy by choice. It is a situation where the discourse has gone beyond the issue of termination of pregnancy in case of a medically untenable foetus, and talks about the mental health condition of the woman and her right to abort it to save her sanity. In that sense, the judgment gives the woman, perhaps for the first time in India, the power to abort even a healthy foetus if she doesn’t want it, and on the strength of her argument alone. The opinion of her husband or parents or family members, doctors and counsellors is extraneous to it. In the said case, the 22-year-old woman complained of domestic violence and her pregnancy was adversely impacting on her mental health. The High Court ruled that the right of exercise of reproductive choice, though restricted by the Medical Termination of Pregnancy (MTP) Act, does protect her right to say no to her pregnancy if her mental or physical health is at stake. Of course, the court had a 2018 precedent when the High Court had said that harm to a woman’s mental health forms a good legal ground to permit an MTP if other legal provisions in law are met.

The latest order also made a crucial statement, that reproductive rights also include the right of the woman to take a decision concerning reproduction free of discrimination, coercion and violence, pointing out that the latter two conditions are not necessarily physical. The MTP Act was last amended in March this year to expand the access to safe and legal abortion services. The Bombay High Court judgment opens the door to a world dealing with a woman’s choice to pregnancy or abortion. It is a logical step in the right direction. Despite the positive amendments, the Act continues to give doctors, not women, the final say on terminating pregnancy. Also, Section 312 of the Indian Penal Code which declares “causing miscarriage” as an offence continues to exist. In that sense, the amended Act is merely an exception to the IPC as abortion is available only under the conditions specified in it. The ideal law should allow a woman to decide for herself if she wants her pregnancy and, if not, have the right to tell a doctor to abort it. The current law only gives her a narrow set of conditions where medical professionals decide for her. The law does recognise mental health as a reason for seeking abortion but doctors can reject the plea if it violates their personal beliefs. By recognising mental health as a genuine reason for abortion, the Bombay High Court has shifted the choice, in this specific area, from the doctor to the woman. It’s a big step for womankind, indeed.

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