Unmarried women cannot be denied right to Pregnancy Termination: Punjab and Haryana HC directs re-examining of terminating of 26-week pregnancy

Punjab: Taking note of the fact that the Medical Termination of Pregnancy (MTP) Act recognizes the right to sexual autonomy of women, the Punjab and Haryana High Court has ordered medical reexamination of a class 12 girl for the possibility of termination of her 26-week-old fetus.

The order was passed in response to the doctors at PGIMER who expressed their opinion after conducting a medical examination on the girl that both the girl and the foetus were in good health. Moreover, they also opined that the foetus would likely be born alive and thus recommended continuation of the pregnancy.

The case pertains to an 18-year-old girl from Punjab, who was in a consensual relationship with a boy and got pregnant but as the duo had parted ways following this she approached the court seeking termination of pregnancy.  

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The petitioner in this case pleaded with the court to allow the doctors to perform a foeticide, citing the risk of a premature birth that could harm the child. She explained that she was not emotionally ready for childbirth and feared the impact it would have on her future, including increased social stigma and restrictions.

As per the regulations outlined in the Medical Termination of Pregnancy (MTP) Act, termination of pregnancy is permissible within the first 20 weeks with the agreement of two registered medical practitioners. Nevertheless, termination between 20 to 24 weeks is restricted to specific categories of women, such as those facing a risk to their lives or in cases of foetal abnormalities.

In this regard, Single Bench Justice Vinod S. Bhardwaj said, "This Court may have approved of the medical termination if the foetus or the mother would have suffered a grave physical or mental harm or the child was likely to be born with serious physical, mental or psychological deformities, however, a mental shock or stigma as a result of a pregnancy not approved, but on account of a consensual relationship, cannot at this juncture be seen as an event which would have an irreversible mental hazard."

"Exercise of a right of sexual autonomy also at times 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 Court added.

The court took note of the fact that although it is acknowledged that the pregnancy in question is unwanted and there may be potential social consequences for the petitioner, the legislature has established a specific timeframe for allowing such termination. This timeframe is determined after carefully considering the medical condition and status of the foetus, reports HT.

“It is also seen that while the law may confer a right to be exercised by the mother for seeking a termination of pregnancy (for up to 24 weeks), an individual cannot claim an unbridled right,” it asserted.

“The court cannot be oblivious to the possibility of a pre-term delivery and the consequences which its order may have to a child or to assume a role where it takes upon itself to decide that the child ought not to be allowed to be born alive,” it added.

Further, the Court said that an unmarried woman, who exercises her right to sexual autonomy, cannot be denied consideration for seeking medical termination of pregnancy when such right is recognized for a married woman under the Medical Termination of Pregnancy Act (MTP Act).

According to the Live Law news report, the Court observed that the law cannot live in the past and remain static or act as an impediment that blocks the changing social requirements and fails to advance the cause of social justice.

“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.

Therefore, the Court made certain directions to the Medical Board to re-examine as to whether the termination of the pregnancy can be carried out, without a foeticide.

It stated that if the Medical Board believes that the medical termination of the pregnancy would not be possible and it would rather lead to a pre-term delivery or potentially foeticide, the procedure shall not be carried out any further.

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