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Writ Petition before the Supreme Court of Estancia
Written Submission On Behalf of the Respondent
Writ Petition (Civil) No. ____of 2022
Mrs Anandhi ………………………… Petitioner
V.
Union of estancia ……………………………… Respondent
Most respectfully submitted before the Hon’ble Chief Justice and companion Judges of the Supreme Court of Estancia
1 Table of abbreviations 3
2 Index of authorities 4
3 Statement of jurisdiction 5
Statement of facts
5 Statement of issues 7
6 Summary of arguments 8
7 Arguments advanced 10
8 Prayer 17
● The Constitution of India, 1950 ● Indian Penal Code, ● Medical Termination of Pregnancy Act, 1971
CASES REFERRED:
● Kharak Singh V. State of U.P. ● Suchita Srivastava & Anr. V. Chandigarh Administration (2009) ● Dr. V K Krishnan V. State of Kerala (2010) ● Anil Kumar Malhotra V. Ajay Pisricha (2017),
BOOKS:
● The Constitution of India, ● Indian penal code, 1 860
ONLINE WEBSITES:
● https://www.legalserviceindia.com/articles/adp_tion.htm ● http://www.legalservicesindia.com/article/299/Right-of-Women-to-Terminate-Pregna ncy.html ● https://clpr.org.in/blog/abortion-jurisprudence-in-the-supreme-court-of-india-is-it-the womans-choice-at-all/#:~:text=The%20Court%20held%20that%20%E2%80%9Ca,he r%20to%20terminate%20her%20pregnancy. ● https://theprint.in/judiciary/women-dont-have-absolute-right-to-terminate-pregnancy modi-govt-tells-supreme-court/293062/
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
1. Whether a woman has rights under the Constitution to retain or terminate her pregnancy?
No, According to the constitution, women do not have the right to terminate their pregnancy. In India, unsafe abortion continues to be the third leading cause of maternal death, accounting for 8% of all maternal deaths. As the protector of the citizens, the state has moral and legal obligations, as well as parental authorities, to protect the life of the child in the womb once it has reached viability. In general, there are two opposing viewpoints on the legalisation of abortions. According to one viewpoint, terminating a pregnancy is the pregnant woman's option and a part of her reproductive rights. The alternative viewpoint is that the state has a commitment to safeguard life and, as a result, the foetus should be protected.
2. Whether the Medical Termination of Pregnancy Act and other Estancia laws are violative of a woman’s right to terminate her pregnancy?
No, the medical termination of pregnancy act and other Estancia laws are not violative of a woman‟s right to her pregnancy. A woman has a right to abortion if:
● The risk to the pregnant woman's life if the pregnancy is not terminated is greater than if the pregnancy is terminated. ● The termination is required to avoid serious lasting harm to the pregnant woman's physical or mental health. ● The continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman. ● The continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, or injury to the physical or mental health of any existing child of the family of the pregnant woman.
1. Whether a woman has rights under the Constitution to retain or terminate her pregnancy?
No, women do not have rights under the constitution to terminate their pregnancy. Unsafe abortion continues to cause 8% of maternal mortality in India and continues to be the third- largest cause of maternal mortality. The state is morally and duty-bound as the guardian of the citizens and has parental powers to safeguard the life of the child in the womb after it has attained the stage of viability. Broadly, there are two differing opinions with regard to allowing abortions. One opinion is that terminating a pregnancy is the choice of the pregnant woman and a part of her reproductive rights. The other opinion is that the state has an obligation to protect life, and hence should provide for the protection of the foetus.
According to the abortion rule in Estancia, the legality of abortion depends on the following cases:
● A woman has a serious disease and the pregnancy would endanger her life. ● If the pregnancy endangers the woman's physical or mental health. ● The foetus has a substantial risk of physical or mental handicap. ● A woman contracts rubella (German measles) during the first three months of pregnancy. ● Any of the woman‟s previous children had congenital abnormalities. ● The foetus is suffering from RH disease. ● Exposure of the foetus to radiation. The pregnancy is the result of rape. ● A woman‟s socioeconomic status may hamper a healthy pregnancy. ● A contraceptive device failed. To perform an abortion procedure on a pregnant woman, you require the permission of certain
persons. Like, if a woman is married, her own written consent is sufficient.
So, only under these circumstances that are due to rape, or any foetal abnormality abortion is permissible or otherwise, it is not permissible. There is also some evidence that having an abortion may increase a woman's risk of breast cancer in later life. Some other complications include damage and/or infection to the uterus and the Fallopian tubes making a woman infertile. Menstrual disturbances can also occur. Aborting foetuses because they may be disabled sends an implicit message of rejection to people with disabilities. In July 2017, a 19- year-old rape survivor approached the Gujarat High Court seeking permission to terminate her 26-week pregnancy. While the girl pled that she was "totally innocent and will have to face punishment for her entire life for the crime committed by someone else", the plea was rejected by the High Court which argued that "the risk from abortion was higher than delivery at the term".
As IPC also governs Estancia abortion laws, Sections 312 to 316 of the Indian Penal Code 1860 lays down situations. These state as to when abortion is illegal and punishable under the law. The law states that causing a miscarriage of a pregnant woman is a crime under the Code. Also, any person who voluntarily causes a woman with miscarriage will face punishment imprisoning up to 3 years and fine. Especially, if such miscarriage is not caused in good faith for the purpose of saving the life of the woman.
Under the law, abortion in Estancia is illegal in two conditions: ● When a woman is with child, it means the situation when the gestation has begun ● When a woman is quick with child, it means that the child‟s motion is felt by the mother
● When pregnancy is caused due to rape (presumed to cause grave injury to the mental health of the woman); ● When pregnancy is caused due to failure of contraceptives used by a married woman or her husband (presumed to constitute a grave injury to the mental health of the woman). ● When the socio-economic condition of the family is poor and the couple already has 2– 3 children.
Savita Sachin Patil vs. Union of India^1 the Court rejected termination of a 27-week pregnancy. The Medical Board gave a finding that there was no physical risk to the mother but the foetus had severe physical anomalies. The Court then did not permit termination on the ground, based on the Medical Board Report.
In Alakh Alok Srivastava vs. Union of India W.P. (C) No. 565/2017^2 , where the petitioner was a 10-year-old pregnant rape victim with a 32-week pregnancy as well the Court did not allow termination. The Medical Board opined that the continuation of the pregnancy was less hazardous for the petitioner than termination at that stage. During the course of the proceedings, the Court asked the Centre to direct setting up of permanent medical boards in states to expeditiously examine requests for termination post 20 weeks of pregnancy and the Centre issued instructions for the same. In Meera Santosh Pal v. Union of India^3 ,and X v. Union of India^4 , the Supreme Court emphasized that a pregnant woman has the right to preserve her own life and cannot be forced to continue a pregnancy that may cause her physical or mental injury. In both these cases there were fatal foetal impairments and the medical opinion noted that carrying the pregnancy to term would pose risks to the pregnant woman’s mental and physical health. Similarly, in Mamta Verma v.Union of India^5 ,and X v. Union of India, the Supreme Court permitted post-20 week abortions on the ground of foetal impairments that were incompatible with life outside the uterus. In both cases, the Court also took into account the risk of mental injury to the pregnant woman from carrying the pregnancy to term.
(^1) Sachin Patil vs. Union of India (^2) Alakh Alok Srivastava vs. Union of India W.P. (C) No. 565/ (^3) (2017) 3 SCC 462. (^4) (2017) 3 SCC 458. (^5) 2017 SCC OnLine SC 1150
3. Whether the Medical Termination of Pregnancy Act violates the father’s right to retain the unborn child?
No, the Medical Termination of Pregnancy Act violates the father’s right to retain the unborn child. When a child is born, it is the contribution of both parents. A woman carries a child in her womb, but a father is the one who takes care of the unborn child and the mother. He is the one who always protects both of them, and is equally responsible for any mishappening of the mother or the unborn child. Abortion is a very difficult decision. There should be a regulation giving equal rights to the father to decide whether abortion of the child should be done or not. In many cases, women do not want to bear the child to maintain their body shape or simply not take the child’s responsibility. In 2011, it was reported that Indonesia, Malawi, Syria, United Arab Emirates, Equatorial Guinea, Kuwait, Maldives, Morocco, South Korea, Saudi Arabia, Japan, Taiwan, and Turkey, all had laws that required that an abortion first be authorized by the woman’s husband. All these mentioned countries gave equal rights to the father and the mother in case of abortion. They believe that it is the decision of both the parents as they are the ones who are going to take care of the child in the future and are responsible for the act done by them. Even if the pregnancy is abnormal, both should consent to the same.
In Anil Kumar Malhotra v Ajay Pashricha (2017), the Supreme Court addressed the issue of whether the husband/father’s consent to abortion has any relevance. In this case, the husband had filed a suit and claimed damages from his wife for terminating her pregnancy, without taking his consent. The man had further argued that the termination of pregnancy done by his wife was illegal as mentioned under the provisions of the Medical Termination of Pregnancy Act 1971. The Supreme Court examined the case and dismissed the appeal filed by the husband. Here the pregnancy termination done by the wife is illegal and the father's consent is then not taken into consideration since the medical termination of pregnancy Act does not say anything about the consent of the father so the father's consent is also important in termination of pregnancy and it should not be fully on oneside alone and the medical termination of pregnancy Act states nothing about the father's consent in the termination of pregnancy and that doesn't mean that it totally avoids the father's consent.
According to the abortion rule in Estancia, the legality of abortion depends on the following cases: ● A woman has a serious disease and the pregnancy would endanger her life. If the pregnancy endangers the woman's physical or mental health. ● The foetus has a substantial risk of physical or mental handicap. ● A woman contracts rubella (German measles) during the first three months of pregnancy. ● Any of the woman's previous children had congenital abnormalities. ● The foetus is suffering from RH disease. So, only under these circumstances that is due to rape, or any foetal abnormality abortion is permissible or otherwise it is not permissible. Hence, the medical termination of pregnancy act does not violate the right to life of an unborn child.
In light of the facts of the case, the issues raised, arguments advanced and authorities cited, Counsels on behalf of the Respondents humbly pray before this Hon’ble Supreme Court of Estancia to kindly consider and pleaded that:-
● That the woman does not have rights under the Constitution to retain or terminate her pregnancy
● That the Medical Termination of Pregnancy Act and other Estancia laws are not violative of a woman’s right to terminate her pregnancy
● The Medical termination of pregnancy Act does not violate any persons right.
● The Medical termination of pregnancy Act of safeguard s unborn child from illegal abortions.
AND/OR
Pass any other order which the bench deems fit in the best interest of Justice, Equity and Good Conscience, and for this act of kindness the Counsels on behalf of the respondent as in duty bound shall forever pray.
All of which is respectfully submitted
Sd/-
Counsel for respondent
