When It Comes To Abortion Rights, A Woman Prisoner Cannot Be Treated Differently, Says Bombay High Court

In it’s recent judgement, Bombay high court stated that pregnant women inmates in India have equal abortion rights like any other woman in India. Here’s more.

In many situations, it may be true that abortion is the only way out for a woman. Read in any light, the right to terminate one’s pregnancy is not a frivolous right given that it relates to a woman’s right over her body and mind. In a recent decision by the Bombay High Court, this issue was brought to fore and discussed.

The high court suggested that abortion might be the only way out for a woman inmate, and therefore, jail authorities are not to wait for court orders, but can go ahead and send women prison inmates to the closest state hospital should they so wish to terminate their pregnancy, within the legally established deadline. In acknowledging and reasserting this right, the court made a powerful statement, to the effect that the law “bestows a very precious right to a pregnant woman to say no to motherhood”.

In doing so, the judgment of the High Court effectively reasserted and upheld the right of women to their dignity, privacy and bodily integrity. According to the bench, “If a woman does not want to continue with a pregnancy, forcing her to do so represents a violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health.”  The court also suggested that a woman prisoner should not be treated differently than other pregnant women. “It is the right of a woman to be a mother, so also it is the right of a woman not be a mother, and her wish has to be respected. This right emerges from her human right to live with dignity as a human being in society and protected as a fundamental right under Article 21 of the Constitution of India with reasonable restrictions, as contemplated under the Act,” declared the bench.

The facts leading up to the case grounds around an inmate of the Byculla Women’s Jail, who wanted to terminate a second pregnancy – since her firstborn, who was five months old, had an illness and she and the baby were both weak. She had a judge visit her in jail and the High Court intervened. She had a termination of her pregnancy. The High Court suggested that jails are expected to conform to a certain standard in operations, and required that they follow the directions that they laid down. It also required that jails should ensure that women inmates are not held up by bureaucratic delays and be forced to miss deadlines under the ambit of the Medical Termination of Pregnancy Act (MTP) Act. As per the legislation, an abortion is allowed up to twelve weeks, and with the approval of two doctors, it may be done at any time up to twenty weeks.

The decision of the Bombay High Court is indeed far reaching. Within context, it is but undoubtedly true that the intersection of many factors predisposes that a woman inmate might not be in a position to bring up a child, or even for that matter, be physically or mentally ready, willing, comfortable or able, to have a child. To confine them even in the right over their own body is a grave injustice, and as a social responsibility, it must be avoided. The right of an inmate in deciding anything for her mind, body and actions are constrained by the fact that she already is incarcerated, notwithstanding what judicial reasoning authorized it. However, to force her to beget a child when she would much rather do without the added obligation while in prison, is a human rights violation.

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Kirthi Jayakumar

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