State's side- Constitutionality of the 20 week limit in MTP Act
In this post I present the arguments on this question from the State's perspective.
The limit on abortion is purely a question of policy -
It is well settled that the SC and HC will not interfere or adjudicate upon Government policy matters. (V.G Ramachandra, General Principles of Writ Jurisdiction, Vol. 1, 6th Ed. p. 550) The principle is firmly embedded in the Constitution, that the policy of law and expediency of passing it, are matters for the legislature to decide, while interpretation of laws and their validity fall within the exclusive adjudicatory functions of the court. ( Special Courts Bill, 1978, Re, (1979) 1 SCC 380, 405) This is because in complex social, economic or commercial matters decisions have to be taken keeping in mind several factors, and it is not possible for the courts to consider competing claims and conflicting interests and to conclude in which way the balance tilts. ( Nagaraj v. State of A.P, (1985) 1 SCC 523)
First, barring a few parts of the world, abortion laws provide for a limit on the gestation age until which termination of pregnancy is permissible. (World Abortion Policies, 2007) Thus the proposition that there ought to be a limit fixed beyond which termination of pregnancy cannot be allowed, is widely accepted as reasonable and rational.
Secondly, this proposition is largely motivated by factors such as risk to the life and health of the woman in a late abortion and also viability of the foetus. The point of viability may vary from case to case (Stephen M. Krason , Abortion – Politics, Morality and the Constitution, 1984 p. 347) and similarly the risk that each woman would have also varies from individual to individual. Therefore a common scheme of general application governing the upper limit of abortion has to be evolved in the light of various factors such as health and safety of the woman, the viability of the foetus, other socio-cultural conditions prevalent in India such as sex-selective abortions, etc. Inevitably the legislature has to counterbalance conflicting claims while determining this upper limit. On one hand the freedom of choice given to the woman to terminate her pregnancy under certain circumstances and on the other the danger to her life in undergoing a late abortion and also the viability of the foetus. The balancing of these conflicting claims involves minute questions of policy which must be left to the judgment of the legislature.
The policy is reasonable -
This policy is not unreasonable because it has been formulated keeping in mind all relevant facts. (Nagaraj v. State of A.P) such as health and safety of the woman, and viability of foetus.
The relative risk of dying as the consequence of abortion approximately doubles for each 2 weeks after 8 weeks gestation. (William's Obstetrics, p. 247) Besides, in performing a late abortion there is not only a danger to life of the woman but it could also result in severe and fatal infections. The object of the MTP Act was to regulate abortions in order to reduce the maternal mortality rate and thereby ensure safety of pregnant women. Despite improvements in medical technology, the mortality rate in India during abortion is still very high and the Government is under tremendous pressure to address the same. (Concluding Observations of the Committee on Economic,Social and Cultural Rights, Fortieth session, 28 April - 16 May 2008 E/C.12/IND/CO/5) Thus the classification made still has a nexus with the object of the Act and cannot be considered to be unreasonable.
A foetus is said to become viable i.e. capable of surviving outside the womb of the mother if prematurely born, at the end of 20th week. The chances of survival of a foetus are much higher if born between the 24th and 28th week but its survival at the 20th week is possible. (Stephen M. Krason ) Viability of the foetus forms a very vital consideration as the interest of the State in protecting the potential life becomes compelling, thereby justifying intervention. (Roe v. Wade) The countries which fix their upper limit of abortion on this consideration vary between 12 weeks to 28 weeks. Thus there is no one fixed point of reasonableness and there is a wide and large area within which the legislator can act without violating the constitutional mandate of reasonableness. This is the area where the courts would permit a ‘free play in the joints,’ to the legislators and having fixed the limit at 20 weeks, the legislators are within the mandate of reasonableness.
Thus these arguments that may be shown to exist from the State's side show that the said limit can be consititutionally valid.
It will be interesting to see what the Courts will have to say about this provision when a case similar to Niketa Mehta's - comes up for discussion again, and where the court actually gets the opportunity to decided on the question of constitutionality of the provision.
The limit on abortion is purely a question of policy -
It is well settled that the SC and HC will not interfere or adjudicate upon Government policy matters. (V.G Ramachandra, General Principles of Writ Jurisdiction, Vol. 1, 6th Ed. p. 550) The principle is firmly embedded in the Constitution, that the policy of law and expediency of passing it, are matters for the legislature to decide, while interpretation of laws and their validity fall within the exclusive adjudicatory functions of the court. ( Special Courts Bill, 1978, Re, (1979) 1 SCC 380, 405) This is because in complex social, economic or commercial matters decisions have to be taken keeping in mind several factors, and it is not possible for the courts to consider competing claims and conflicting interests and to conclude in which way the balance tilts. ( Nagaraj v. State of A.P, (1985) 1 SCC 523)
First, barring a few parts of the world, abortion laws provide for a limit on the gestation age until which termination of pregnancy is permissible. (World Abortion Policies, 2007) Thus the proposition that there ought to be a limit fixed beyond which termination of pregnancy cannot be allowed, is widely accepted as reasonable and rational.
Secondly, this proposition is largely motivated by factors such as risk to the life and health of the woman in a late abortion and also viability of the foetus. The point of viability may vary from case to case (Stephen M. Krason , Abortion – Politics, Morality and the Constitution, 1984 p. 347) and similarly the risk that each woman would have also varies from individual to individual. Therefore a common scheme of general application governing the upper limit of abortion has to be evolved in the light of various factors such as health and safety of the woman, the viability of the foetus, other socio-cultural conditions prevalent in India such as sex-selective abortions, etc. Inevitably the legislature has to counterbalance conflicting claims while determining this upper limit. On one hand the freedom of choice given to the woman to terminate her pregnancy under certain circumstances and on the other the danger to her life in undergoing a late abortion and also the viability of the foetus. The balancing of these conflicting claims involves minute questions of policy which must be left to the judgment of the legislature.
The policy is reasonable -
This policy is not unreasonable because it has been formulated keeping in mind all relevant facts. (Nagaraj v. State of A.P) such as health and safety of the woman, and viability of foetus.
The relative risk of dying as the consequence of abortion approximately doubles for each 2 weeks after 8 weeks gestation. (William's Obstetrics, p. 247) Besides, in performing a late abortion there is not only a danger to life of the woman but it could also result in severe and fatal infections. The object of the MTP Act was to regulate abortions in order to reduce the maternal mortality rate and thereby ensure safety of pregnant women. Despite improvements in medical technology, the mortality rate in India during abortion is still very high and the Government is under tremendous pressure to address the same. (Concluding Observations of the Committee on Economic,Social and Cultural Rights, Fortieth session, 28 April - 16 May 2008 E/C.12/IND/CO/5) Thus the classification made still has a nexus with the object of the Act and cannot be considered to be unreasonable.
A foetus is said to become viable i.e. capable of surviving outside the womb of the mother if prematurely born, at the end of 20th week. The chances of survival of a foetus are much higher if born between the 24th and 28th week but its survival at the 20th week is possible. (Stephen M. Krason ) Viability of the foetus forms a very vital consideration as the interest of the State in protecting the potential life becomes compelling, thereby justifying intervention. (Roe v. Wade) The countries which fix their upper limit of abortion on this consideration vary between 12 weeks to 28 weeks. Thus there is no one fixed point of reasonableness and there is a wide and large area within which the legislator can act without violating the constitutional mandate of reasonableness. This is the area where the courts would permit a ‘free play in the joints,’ to the legislators and having fixed the limit at 20 weeks, the legislators are within the mandate of reasonableness.
Thus these arguments that may be shown to exist from the State's side show that the said limit can be consititutionally valid.
It will be interesting to see what the Courts will have to say about this provision when a case similar to Niketa Mehta's - comes up for discussion again, and where the court actually gets the opportunity to decided on the question of constitutionality of the provision.
Dear Preeti,
ReplyDeleteI just wanted your interpretation of S4 of the MTP Act, which i've given below.Is the consent of the mentally ill woman imperative even when her guardian has given consent?? ie are both the consents necessary to carry out the MTP?
4(a) No pregnancy of a woman who has not attained the age of 18 years, or, who, having attained the age of 18 years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.
Well as of how I see it, in case of a minor or mentally ill woman, ONLY the consent of the guardian is required.
ReplyDeleteMinors and persons of unsound mind are considered to be incable of having a mature understanding so their decisions have to be made by the guardian taking into account their best interest.
Now lets see the section.
Section 4(a) says that an abortion cannot be performed on a mentally ill person even if above 18 years- without the consent of her guardian. this means that if the woman is mentally ill, consent of the guardian is absolutely imperative.
Section 4(b) says "save as otherwise" provided in clause (a) no pregnancy shall be terminated without the pregnant woman's consent. This means that clause a is an exception to clause (b). this means is, that except if the woman is under 18 or mentally ill, her consent is indispensable.
Hope this helps you. :)
hi preeti,
ReplyDeletei m curious to know the critical evaluation of sec.3(2) MTP act which talks abt limits on abortion.dont u thnk women shd have freedom to give birth (or not) to her child?
Hi,
ReplyDeleteFirst, thank you for your querry.
Now answering your question, pro-choice advocates may say that women should have complete freedom to choose whether or not to give birth to her child but this question is part of a larger policy issue involving multiple concerns and sentiments - political, religious, and constitutional. Also, unfettered or unrestricted freedom can be chaotic. Therefore, though I support women's freedom to choose, I also feel that certain restrictions may be necessary.
What do you think?