Tuesday, September 8, 2009

Supreme Court of India upholds a woman’s right to decide whether or not to procreate

The Supreme Court of India has upheld the right of a mentally challenged rape victim from Chandigarh to give birth to her baby. The court held that forcible termination of pregnancy, or denying the woman the choice to have a child, violated her fundamental rights. Conversely, refusal by a woman to bear a child too is a fundamental right.

“A woman’s right to privacy, dignity and bodily integrity should be respected,” the court said. On July 21, it stayed the medical termination of pregnancy of the woman. The court said the legislative intent of the Medical Termination of Pregnancy Act, 1971 was to provide a qualified ‘right to abortion’ and that termination of pregnancy had never been recognised as a normal recourse for expecting mothers.

The bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and B S Chauhan held that it was “anti-democratic” to forcibly perform family planning surgery and abortions on people who were mentally challenged. In the case of the Chandigarh woman, an expert panel had said that although the woman’s mental age was that of a nine-year-old, she understood the meaning of pregnancy and could manage things by herself. And, she wanted to have the child.

The judgment has repercussions beyond the right of mentally challenged women to have babies. It upholds a woman’s right to make reproductive choices, including the choice to abstain from procreating. The judgment said: “…There should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or, alternatively, insistence on the use of contraceptive methods.

“Furthermore, women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth, and to subsequently raise children.”

The bench also held that there are “compelling state interests” in protecting the life of a prospective child. Therefore, termination of pregnancy is only permitted when conditions specified under the MTP Act are fulfilled. The Act says: “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… No pregnancy shall be terminated except with the consent of the pregnant woman.”

Source: http://infochangeindia.org/200909077925/Human-Rights/News/Supreme-Court-upholds-a-woman’s-right-to-decide-whether-or-not-to-procreate.html


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