September 4,2018:
The Author, CS Mrityunjoy Seal is a practising Advocate at Calcutta High Court.
Imagine, in Mahabharata, if Gandhari had preferred an appeal before the Learned Court of King Dhritorashtro for abortion of innumerable embryos turning into her hundred and one children.
Ignoring the fact that Dhritorashtro being an interested party to hear the matter, how many disinterested but curious faces would have been witnessing the proceeding in public, having no business to interfere in the privacy of a pregnant lady (royal or otherwise) consensually agreed to abort fetuses legally conceived.
So, Gandhari had decided to undergo the process in private, without undergoing the ordeal of an onerous long drawn judicial process in the Court of Dhritorashtro.
Objects of the Medical Termination of Pregnancy Act, 1971 in our country was to provide for,
- termination of certain pregnancies by registered Medical Practitioners;
- debarring termination of pregnancies of the pregnant woman beyond twelve weeks or twenty weeks having chance of physical or mental abnormalities of the pregnant woman (arising out of rape or failure of birth control devices);
- termination of pregnancy of woman below eighteen year without her guardian’s consent;
- termination of pregnancy at Government approved places and by registered medical practitioner/s;
Section 8 provided protection of action taken in good faith, where no suit or legal proceedings shall lie against any registered medical practitioner for any damage caused or likely to be caused by anything, which is in good faith done or intended to be done under this Act.
The amended Act of 2002 provided for clarification to various provisions of the 1971 Act for better working and enforcement of the Act.
Therefore, any pregnant woman, in normal situation within twelve weeks of pregnancy and others being sexual violence victims or other physical and mental abnormalities is at liberty under the law to undergo abortion process conducted by one or two registered medical practitioner/s as the case may be, at a registered place approved for the purpose, shall be remaining well within the four corners of law, just like the medical practitioner/s conducting abortion or the registered place or its owner where the process is conducted.
The entire process, people and place were sought to be controlled by the State system. It is difficult to fathom at any stage as to how the judiciary had suddenly usurped the power to control individual pregnancy termination process by elaborate judicial mechanism by playing supremacy on the State control system, medical professionals and over all, the legal owner of the fetus, being the pregnant woman seeking to undergo the abortion process or her guardian, if she were below eighteen years of age.
Imagine the ordeal of a woman of any age, economic and social status, either legally conceived but carrying an abnormal fetus or being a victim of sexual violence who cannot maintain her confidentiality of pregnancy beyond twenty weeks without approaching a board of gynecologists, a supreme court registered advocate on record to prepare and file her case, a counsel to mention, move and argue her case and finally in the event of a negative order, to wait for the abnormal baby to be born and to raise and carry the undue and undesired burden all through thereafter. This is in addition to making it public in print and electronic media. It seems that two senior members of the Bar selected on Bench on the basis of their knowledge of law supposed to feel the pain and agony more than that of the carrying woman and her family members and even the attending gynecologists in any view of the matter. This is beyond any logical reach and explanation of rights protected under Article 21 of the Constitution.
Apex court disagreed recently to direct centre to amend the MTP Act to formulate a scheme for setting up of a mechanism for expedient termination of pregnancy beyond twenty weeks without court intervention. The Hon’ble Three Member Bench of the apex court felt that this was the Parliament’s prerogative to take a call in this behalf and it would refrain from encroaching upon the legislature’s domain. The court however, notified the centre to respond to an application filed in this regard by one Ms. Anusha Ravindra seeking,
1] Framing of guidelines for termination of pregnancy under safe medical facilities,
2] Constitution of a committee for framing guidelines for setting up a permanent mechanism for expedient termination of pregnancy beyond twenty weeks in exceptional cases and
3] Direction the centre to amend section 3 of the Act.
The Hon’ble Court has assured to her plea for framing guidelines on abortion beyond twenty weeks but disagreed to direct centre to amend the law. This is high time that all concerned realize that termination of pregnancy at any age and time is the first and foremost prerogative of the carrying women followed by her family members and she, under the State control mechanism cannot be made subject to any third party additional discretionary approval, be it judiciary or executive. After all, it is not going to be anybody’s baby but hers.
We need lawyers are willing to support the helpless carrying women in their tirade to get rid of undesired pregnancy without intervention of those having no business whatsoever in her privacy.
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