MADHYA PRADESH HIGH COURT AT INDORE ISSUES ORDER ON THE RIGHT OF PREGNANT PRISONERS TO ACCESS MEDICAL TERMINATION OF PREGNANCY
INDORE - The High Court of Madhya Pradesh at Indore issued an order allowing Hallo Bi, a pregnant female prisoner, to exercise her reproductive rights under the Medical Termination of Pregnancy Act (Act). Hallo Bi had been sold into prostitution by her husband and after months of continuous instances of rape, she became pregnant.
In the order, the Court wrote, “We cannot force a victim of violent rape/forced sex to give birth to a child of a rapist. The anguish and the humiliation which the petitioner is suffering daily, will certainly cause a grave injury to her mental health.” This is a positive development for Hallo Bi and sets an important precedent for similar circumstances by affirming rape victims’ right to lawful termination of pregnancy under the 1971 Act. Unsafe abortions are one of the leading causes of maternal mortality in India with approximately 6.7 million abortions performed every year at unregulated facilities, often by medical practitioners untrained in abortion services.
In early December 2012, Human Rights Law Network (HRLN) Reproductive Rights Unit Assistant Director, Ms. Karla Torres, read an article in the Times of India about a pregnant woman who was in prison for murdering her husband and had been ordered to make a written application to the High Court for a termination of pregnancy. After communicating with HRLN advocate Mrs. Shanno Shagufta Khan in Indore and meeting with Hallo Bi, HRLN filed a petition requesting the High Court to allow for a medical termination of pregnancy.
The petition also stressed the Act’s silence on this issue and asked the High Court to issue guiding directions. As both the Act and the jail manual are silent on this aspect, the High Court had requested Hallo Bi to submit a written application for a medical termination of pregnancy. The High Court subsequently denied Hallo Bi’s application. HRLN’s petition stressed that the High Court had erred in not allowing Hallo Bi’s application as the power to refuse the same did not lie with the High Court.
Under the Act, the decision to terminate a pregnancy is between a woman and her doctor(s). As such, once a medical practitioner is of the opinion that the pregnant woman falls within the conditions laid down in the Act, a medical termination of pregnancy can take place. A court, therefore, does not have authority to determine whether a woman can or cannot terminate her pregnancy. Instead, a court can ensure that a woman who requests a medical termination of pregnancy under circumstances that satisfy the Act is provided with adequate medical care and services to fulfil her right to a termination of pregnancy.
Although the High Court found that Hallo Bi’s circumstances satisfied the MTP Act, the Court did not include guiding directions. Notwithstanding, HRLN plans to request a review of the petition so that this issue is taken up afresh and guiding directions are issued.
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