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#GenderJustCourts - Right to Termination of Pregnancy: Meera Santosh Pal vs. Union of India

This post is part of a series that seeks to explore judgements relating to gender justice and equality in the Indian Courts. As a common law system, we know that it is the combination of legislation passed in parliament and interpretations made by judges that make up the laws that affect women and girls across India. We hope this series provides an insight into how past cases might impact future ones.

The Meera Santosh Pal case, 2017, is a landmark judgement towards furthering the reproductive and sexual health rights of women.

Background of the case

In this case, the Petitioner, a twenty-two year old married woman approached the court for directions to the government to allow her to abort her 24 week old fetus. Having discovered that the fetus was suffering from Anencephaly, a defect that leaves fetal skull bones unformed, she apprehended danger to her mental health if the pregnancy were carried to term. The Petitioner was constrained to approach the court, as physical disability of the fetus is a ground for termination of pregnancy only until the 20th week of gestation. After that, the only ground for obtaining an abortion under the Medical Termination of Pregnancy Act, 1971, is threat to the life of the pregnant woman.

Highlights of the case

The court allowed the petition on the ground that giving birth to an unviable fetus may adversely affect the petitioner’s mental health, thus posing a threat to her life. While stating that the woman’s right to terminate her pregnancy should feature as the prime consideration in its decision, the court made repeated references to the un-viability of the fetus and the futility of forcing the petitioner to carry the pregnancy to term.

Towards Gender Justice? Definitely!

The Court specifically stated that it would not decide the matter with reference to the viability of the fetus, but only with regard to the right of the Petitioner to preserve her life in view of the foreseeable danger to it. In doing so, the Court recognized that the woman’s right to termination of pregnancy, although not absolute, is of greater significance than any rights that may vest in the fetus after twenty weeks of gestation. The Court also adopted empowering language, by stating that the exercise of the Petitioner’s rights was within the limits of reproductive autonomy. This decision is therefore a step forward towards greater recognition of women’s reproductive rights.

Implications of the case

The Medical Termination of Pregnancy Act states that a pregnant woman can terminate her pregnancy up to twenty weeks of gestation, for a variety of reasons, including harm to her physical and mental health. However, under Sec. 5 of the Act, the grounds for termination of pregnancy are greatly limited. This section states that after twenty weeks, she can terminate the pregnancy only if it poses a risk to her life. While the general understanding is that threat to life should be understood as threat to physical health of the woman, this decision has phenomenally expanded the scope of Sec. 5 to include threat to mental health of the woman.

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