SC- Consent of husband not needed for abortion


Supreme Court upholds woman’s right to abort

Dhananjay Mahapatra| TNN | U

Representative photographRepresentative photograph
NEW DELHI: The Supreme Court has dismissed a man’s petition seeking damages from his estranged wife for undergoing abortion without his consent, and ruled that an adult woman had an unimpeachable right to give birth or terminate pregnancy.

Terming the abortion, to which he had objected, “illegal”, the husband had also demanded compensation from the woman’s parents and brother, and two doctors. The Punjab and Haryana high court had dismissed the husband’s plea saying termination of pregnancy was the sole prerogative of the woman .

An SC bench of Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud upheld the decision of the HC, which had said, ” Keeping in view the strained relations between the husband and wife, the wife’s decision to terminate the unwanted fetus was right. The termination of pregnancy had not soured the relations between the two… So, keeping in view the legal position, it is held that no express or implied consent of the husband is required for getting pregnancy terminated under the (Medical Termination of Pregnancy) Act.”

The CJI-headed bench further fortified the HC ruling by adding, “She is a mother and an adult who says she did not want the pregnancy. How can she or others be made liable for it? Even a mentally challenged woman has a right to terminate her pregnancy. How can parents and doctors be made liable?”

The couple got married in 1994 and had a son in 1995. Due to discord, the wife and son had been staying with her parents in Chandigarh since 1999. During pendency of the wife’s petition seeking maintenance, the Lok Adalat in Chandigarh had mediated, and persuaded the couple to live together in the husband’s house in Panipat.

In November 2002, they started living together and in January 2003 discovered that she was pregnant. As the relationship showed no signs of improvement, the woman wanted to terminate the “unwanted” pregnancy. The man objected. She contacted her parents, who took her to Chandigarh. The husband refused to sign the hospital papers for medical termination of pregnancy but the woman went ahead with the abortion at a Chandigarh hospital.

The man filed a civil suit against his wife, her parents and brothe r, and the doctors for recovery of Rs 30 lakh towards damages on account of mental pain, agony and harassment. He argued that the termination of pregnancy without any medical need and without the consent of the unborn child’s father was illegal under the MTP Act.

The doctors appealed against this in the Punjab and Haryana HC, which dismiss ed the suit before the trial court. The HC said, “This is a most unfortunate case where a husband has brought privileged acts… of husband and wife in the court.”

” If the wife has consented to matrimonial sex… it does not mean that she has consented to conceive a child,” the HC said, “It is the free will of the wife to give birth to a child or not. The husband cannot compel her to conceive and give birth to his child…”

“The woman is not a machine in which raw material is put and a finished product comes out. She should be mentally prepared… to give birth to a child. Unwanted pregnancy would… affect the mental health of the… woman.”

The HC had ordered the husband to pay a cost of Rs 25,000 to each respondent.

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5 Things About Abortion That No One Tells Young Women In India


Posted by Kirrat Sachdeva
As a 25-year old unmarried woman, the amount of unsolicited advice that I receive about my ‘dying ovaries’ is bizarre and amusing. This amusement takes a backseat when you realise that the ‘golden advice’ comes from a the deep-seeded view – women can only exist as ‘mothers’ and ‘wives’. Anything that may remotely enlighten you about your right and autonomy over your body is ALWAYS shushed! The result? Instead of knowing about your rights over your own body, you have a whole lot of stigma that clouds your access to your rights. What makes it worse is that irrespective of whether you’re married or in a relationship, your sexual and reproductive health is everyone’s agenda, but yours.

Addressing this inaccess to information, CREA and Global Health Strategies ran a week long campaign (from 22nd to 29th September) on YKA, sharing some crucial information abortion as a reproductive health right. It led to some important conversation being generated around September 28, Global Day of Action for Access to Safe and Legal Abortion. The campaign highlighted 5 critical things that every person must know (but is not told) to not only demand their right, but also fight the stigma associated with women’s reproductive health and right. All the below infographics are sourced from CREA.

1. You have to petition a court if you need an abortion above the limit of 20 weeks.

Yup, this is true even in cases of rape, incest, and prenatal screenings that show anomalies of the foetus after 20 weeks. In India, a lot of survivors of sexual assault don’t come forward due to the intense shame and stigma. This is one of the prime reasons many women have been petitioning to increase the legal limit to 24 weeks. It’s a shame that thousands have to suffer because the court tells them what’s right to do with their body, and what isn’t. But recent judgements show a brighter future.


2. More than half of the abortions that take place in India are unsafe

When it comes to abortion statistics, it’s a shocking picture. We are never told about the safety precautions we need to take and the questions we have the right to ask doctors. Even though abortion is a crucial reproductive health right, how many of these stats make national news?


3. Women above 18 years of age do not require their partner’s consent to get an abortion.

“But how could you just go ahead and do it?” is a question many women are asked. However, no one talks about how, for adult women, the law protects our right to our body and what we choose. This useful infographic has more on grounds to seek an abortion, and the requirements needed to provide an abortion.


4. A severe gynaec and provider shortage is limiting access to safe abortion

In 2010, the government developed the Training and Service Delivery Guidelines for Comprehensive Abortion Care. But due to obsolete methods and severe shortage in providers, many women suffer when it comes to seeking safe abortions. From counselling to the post-abortion stages, women need support at every stage. If we don’t have enough trained professionals, how can we ensure every woman gets access to this right without hindrance?


5. In the last 9 months alone, 11 cases have gone to court regarding abortion after 20 weeks

These cases prove that the conversation around increasing the legal limit to seek an abortion must be amplified. Like the SC said in July 2017, “A woman has the sacrosanct right to her bodily integrity and it is her choice.” 


Share this crucial information ahead using #AbortTheStigma. And if you have a story around why the silence around abortion must be broken, YKA is your safe space to speak up. Publish here today. 

Himachal HC allows rape survivor to abort 32-week fetus


Anand Bodh| TNN |

Representative ImageRepresentative Image
SHIMLA: The Himachal Pradesh high court has allowed abortion of a 32-week-old fetus of a 19-year-old rape survivor, who has mild to moderate mental retardation.

A division bench of Justice Dharam Chand Chaudhary and Justice Vivek Singh Thakur directed the medical superintendent of Kamla Nehru Hospital in Shimla to arrange for termination of the teenager’s pregnancy under supervision of a medical board constituted by the court.

The law allows medical abortion till 20 weeks of pregnancy, unless mother’s life is at risk. The Supreme Court had in July denied permission to a 10-year-old rape survivor to terminate her 32-week pregnancy, but had recently made exception and allowed abortion at 24 weeks due to life threatening condition.

The bench also directed the hospital to preserve the DNA of the fetus so that it could be used during the course of investigation, inquiry and trial in the rape case registered in Kullu district.

On October 6, the court had directed that the petitioner be examined by a medical board, comprising at least five doctors and headed by head of the department of gynaecology of any of the state-level hospitals.

Aligarh: Two BJP MLAs rush in to prevent arrest of doctors ‘caught’ doing sex-determination test


The MLAs allegedly did not allow Rajasthan officials to seize the ultrasound machine or pick up the accused doctors and left the local Kwarsi police station only when the doctor was let go.

Officials, including the Aligarh District Magistrate, kept trying to convince the MLAs to let the Rajasthan team do their job but they did not relent, sources said.

A doctor couple in Aligarh, caught allegedly conducting illegal pre-natal sex-determination tests on a pregnant woman who was a decoy planted by the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) cell of the Rajasthan government could not be taken into custody after alleged “interference” by two local BJP MLAs, Sanjeev Raja and Anil Parashar, late last night.

The MLAs allegedly did not allow Rajasthan officials to seize the ultrasound machine or pick up the accused doctors and left the local Kwarsi police station only when the doctor was let go. Officials, including the Aligarh District Magistrate, kept trying to convince the MLAs to let the Rajasthan team do their job but they did not relent, sources said.

The Rajasthan team had caught Dr Jayant Sharma and his wife conducting the sex determination test in their Jeevan Nursing Home on Monday evening. The woman reportedly escaped from the hospital. Local police brought Sharma with the seized ultrasound machine to the police station.

The MLAs, too, reached the police station and along with SP City, City Magistrate and other officials, sat there until 2 am.

Confirming this, District Magistrate of Aligarh Rishikesh Bhaskar Yashod told The Indian Express: “We apprised senior officers in the government regarding the local public representatives interfering in the legal matter. We tried to convince the MLAs to allow the legal procedure but they refused to listen.”

Yashod said that Rajasthan officials sought help from him and he sent a magistrate-rank officer with them. “They caught the doctor couple doing the test red-handed,” Yashod said.

Sharma denied the allegations. “The team from Rajasthan forcibly entered the hospital and sealed the ultrasound machine and the DVR (digital video recorder).

Nothing illegal happened and public representatives reached after hearing about the matter. I was let go from the police station around 2 am and no action was initiated against me…I am a surgeon and the owner of the hospital while my wife is a gynaecologist.”

When contacted, Naveen Jain, IAS, and Appropriate Authority of PCPNDT Cell in Rajasthan, told The Indian Express that a team led by a circle inspector of police and a coordinator from the cell had gone to Aligarh for the operation. But they could not complete it due to the “trouble” created there.

SSP Aligarh, Rajesh Kumar Pandey, said that the ultrasound machine has been sealed.

BJP MLA from Kol constituency, Anil Parashar said: “We (he and MLA Sanjeev Raja) reached the police station to ensure that the doctor is not framed in a false case. The Rajasthan team already had sealed the ultrasound machine and the DVR and they should have first probed if the test was conducted. How could they arrest the doctor?” He added: “Dr Jayant Sharma’s father was a teacher and also a top leader of the Bharatiya Mazdoor Sangh as well.”

BJP MLA Sanjeev Raja, when contacted, said: “No such (sex-determination test) action had ever been initiated in Aligarh so far and we won’t allow such thing happen here. Now only the court will decide the action.”

When told that Yogi Aditynath Government had started a scheme to trap doctors involved in sex-determination tests, Raja replied: “If any body has a government order regarding any such act, he should show it.”

Naveen Jain said today that his team would procure an arrest warrant against the doctors. Three middlemen, including two from Aligarh who allegedly played a role in getting the test done, were arrested and will be produced in court tomorrow, he added.

Aligarh: Two BJP MLAs rush in to prevent arrest of doctors ‘caught’ doing sex-determination test

SC allows two rape victims to abort, orders preservation of fetus for DNA test to help nail accused


TNN |

HIGHLIGHTS

  • The bench directed preservation of the terminated fetus for DNA sampling during the investigation
  • SC medical expense of process of termination of pregnancy would be borne by the respective states

Representative photoRepresentative photo

NEW DELHI: The Supreme Court on Thursday permitted two minor girls to terminate their pregnancies caused by rapes and added a new dimension by ordering preservation of the foetuses to help nail the accused during the sexual assault case trial.

One is a 13-year-old from Delhi and another a 17-year-old from Bengaluru and both are rape survivors. A bench of Chief Justice Dipak Misra and Justices Amitava Roy and A M Khanwilkar ordered termination of their pregnancies, which were beyond the permissible period of 20 weeks under the Medical Termination of Pregnancy Act, 1971.

The Delhi girl will undergo the MTP in AIIMS on Friday and the Bengaluru girl will terminate her pregnancy in Bangalore Medical College and Research Institute (BMCRI). The court directed AIIMS and the Karnataka government to bear the expense of the medical procedures required for termination of the pregnancies and food and medicines required by the girls.

Counsel in the two cases — Nikhil Nayyar and Divyesh Pratap Singh — requested the court that since both the pregnancies were caused by sexual assault, it would be helpful if the aborted foetuses were preserved for DNA test to assist the prosecution in nailing the guilt of the accused.

SC passed the orders after medical boards in AIIMS and BMCRI recommendation.

SC allows Pune woman to abort 25-week foetus


 
 

The Supreme Court on Thursday allowed a Pune based pregnant woman, who is in her 25th week of pregnancy, to abort her foetus with abnormalities.

 
Supreme Court of India

“Keeping in view, the report of the medical board, we are inclined to allow the prayer and direct medical termination of pregnancy of petitioner ,” the bench said.

The Supreme Court on Thursday allowed a Pune-based woman to terminate her pregnancy on a medical report that the 26-week-old foetus was without a skull and would not be able to survive.

The apex court noted that the report submitted by a medical board clearly suggested that there was no point in allowing the pregnancy to run its full course and it could pose severe mental injury to the 26-year-old woman.

The medical board of Mumbai-based Sir JJ Hospital, where the woman was examined in pursuance to the court’s order, said she wanted to terminate the pregnancy as the foetus was not likely to survive and it was causing immense mental agony to her.

“We consider it appropriate in the interest of justice and particularly, to permit the petitioner (woman) to undergo medical termination of her pregnancy under the provisions of Medical Termination of Pregnancy Act, 1971,” a bench of Justices S A Bobde and L Nageswara Rao said.

“The condition of the foetus is not compatible with life. The medical evidence clearly suggests that there is no point in allowing the pregnancy to run its full course since the foetus would not be able to survive outside the uterus without a skull,” the bench noted in its order.

The court was also informed that the woman understands that her foetus was abnormal and the risk of foetal mortality was high.

It directed that the termination of pregnancy would be performed by the doctors of the hospital where she underwent a medical check-up.

The woman had moved the court for permission to terminate her pregnancy. Section 3(2)(b) of the Medical Termination of Pregnancy (MTP) Act prohibits abortion of a foetus after 20 weeks of pregnancy.

Earlier, a bench of Justices S A Bobde and L Nageswara Rao had directed setting up of medical boards to examine their health condition and that of the foetus. The court directed the boards to file their reports by August 9 with their opinion on whether the petitioners could be allowed to terminate their 25-week-old pregnancies.

The woman and her husband had approached the apex court seeking permission to abort the foetus.

The Medical Termination of Pregnancy (MTP) Act, 1971, permits abortion till the fetus is 20 weeks’ old. Although the Centre had initiated the process to amend the Act in 2014, it is still awaiting cabinet nod. The proposed bill intends to extend the permissible period for abortion from 20 weeks to 24 weeks if the pregnancy involves a substantial risk to the mother or child. The amendment also allows to do away with the time limit for abortion in cases of substantial foetal abnormalities.

On 3 July, the SC allowed a woman from Kolkata to abort her 26-weeks pregnancy. The bench of Justice Dipak Misra and M Khanwilkar ruled in favour of the woman and said that the abortion should be carried out ‘forthwith’.

There has been an increase in abortion pleas filed in the apex court since April last year when it had allowed a 14-year-old rape survivor from Ahmedabad to abort her 24-week-old foetus. Most of the cases related to abnormalities in foetuses which were detected after 20 weeks. So far the court has adjudicated on six such cases, allowing abortion in three of them.

OneIndia News

Child denied abortion, mother asks: What does a 10-yr-old know


The girl, subjected to repeated rape, allegedly by her maternal uncle, is approximately 30 weeks pregnant, according to doctors at the Government Medical College and Hospital (GMCH), Chandigarh, who have examined the girl.

SHE loves to draw, and her favourite cartoon on television is Pokemon. Her elder sister says her favourite subject is English, though for many months now, she has not attended school. At their one-room home, the servant quarters of a government official’s residence in Chandigarh, the 10-year-old girl walks around for a few minutes in the lawn — “doctors have said she should remain active”, says the mother.

The girl, subjected to repeated rape, allegedly by her maternal uncle, is approximately 30 weeks pregnant, according to doctors at the Government Medical College and Hospital (GMCH), Chandigarh, who have examined the girl. On July 18, Chandigarh’s Additional District and Sessions Judge Poonam Joshi turned down permission for the medical termination of her pregnancy on the basis of a report by doctors at GMCH who said that if the girl went in for an abortion, there could be “high chances of physical trauma”, considering her age and her health – three years ago, the girl had undergone a surgery at PGIMER for a hole in her heart. A Delhi-based lawyer has now filed a Public Interest Litigation in the Supreme Court, seeking medical termination of her pregnancy. The case is coming up for hearing on Monday.

“What does she know, she is only 10 years old. She doesn’t understand all this, she has no idea about her pregnancy. Our plight has become public news… we didn’t want that. We just want her to be healthy and happy. We don’t need any help, we are okay alone. Her father doesn’t want us to talk or say anything about her. He is a broken man since we found out,” said the mother, her eyes brimming with tears.

The mother works as a domestic help at the government official’s residence. Her husband is a watchman in the UT administration, and is studying for an MBA degree through correspondence. The family is originally from Nepal and has been living in Chandigarh for several years.

Last week, it was a neighbour who first noticed the 10-year-old’s swollen stomach and brought it to the mother’s notice. “She is a bright girl, regular to school. She would come to me, for help with her English or maths, sometimes with her homework. She was always quick to respond and answer questions. I was the one who asked her mother why her stomach was swollen,” the neighbour said.

“I asked the girl if she was taking medicines for her heart, thinking the swelling could be a side effect of the medicines. She seemed to have put on weight, but the bulge looked like a pregnancy. When I asked her mother if the girl’s periods were regular, she said she hadn’t had them for some months. I asked her to immediately take the child to the doctor,” the woman said.

That same evening of July 13, the mother’s relatives bought home a pregnancy test kit, which confirmed their worst fears. That’s when the girl said her uncle had raped her “five or six times” and allegedly warned her not to talk about it to anyone.

On July 14, the mother lodged an FIR with the police, accusing her brother of rape. The mother told the police that her brother, a watchman in Chandigarh’s Sector 35 and a frequent visitor to their home, had stopped visiting them in March. Police have arrested the 40-year-old, who is now in judicial custody in Burail jail. His wife and three children are in Nepal.

On July 15, after the family approached the district court, the judge ordered the constitution of a medical board with experts from GMCH and asked them to submit a report on the feasibility of medical termination of pregnancy for the 10-year-old.

“We informed the district court that there are high chances of physical trauma. A psychiatrist who was on board concluded, after interacting with the victim, that she doesn’t understand that she is pregnant or the implications of being pregnant,” said a doctor from the Obstetrics & Gynecology department at GMCH who was a member of the medical board constituted by the court.

The Medical Termination of Pregnancy Act(MTP), 1971, does not permit termination of pregnancy after 20 weeks, but in some cases, courts have made exceptions, especially when continuation of the pregnancy poses a danger to the mother or the unborn child.

“‘We submitted our report to the district court after examining the patient and going through the available law and rules. Since the victim’s pregnancy is in an advanced stage, it is a matter of saving two lives. Let the Honorable Supreme Court take a call now on the matter,” said the doctor.

After an examination of the girl, doctors at GMCH found that at this stage, the baby has to be delivered prematurely. “The case can no longer be considered for abortion. It has to be considered as a premature delivery now,” said another doctor at GMCH who is familiar with the case. Doctors said that they cannot predict the outcome of the case or the baby’s chances of survival in case of a premature delivery. The girl’s health, especially her heart ailment, is also a worry, say doctors. “We don’t know what is going to happen in this particular case. The pelvic bones of the 10-year-old are not fully developed,” said the GMCH doctor.

Doctors at GMCH said they are also considering sending the girl to PGIMER. “This is a very unique case and we don’t really know what is going to happen… Infection and hemorrhage to the girl at the time of delivery could be some of them,” said a doctor from the department of Obstetrics and Gynecology at PGIMER.

Source:http://indianexpress.com/article/india/child-denied-abortion-mother-asks-what-does-a-10-yr-old-know-4763037/

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