The rights of a father are rarely discussed when it comes to abortion. In some cases, the child’s parents may have opposite views, one may want an abortion, and another may not. However, there exists a clear hierarchy of rights in which the mother’s right to abortion prevails over the rights of pre-viable foetuses in all circumstances and the rights of viable foetuses as long as the mother’s health, as freely interpreted, is in danger.
In the case of Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) 10 SCC 1, women’s reproductive choices were recognized as a constitutional right under Article 21 of the Indian Constitution relating to personal liberty.
In Nirav Anupam Bhai Tarkas v. State of Gujarat (2011 SCC OnLine Guj 5577), the Gujarat High Court affirmed the dismissal of a criminal case filed by a husband against his wife and her family for having an abortion despite his opposition on the grounds that his consent was not required.
In 2011, the Punjab and Haryana High Court in Dr Mangla Dogra v. Anil Kumar Malhotra (2011 SCC OnLine P&H 16218) deliberated on “whether the express consent of the husband is required for an unwanted pregnancy to be terminated by a wife?.” The Court noted that under Section 3(4)(b) of the MTP Act, only the consent of the pregnant woman undergoing the termination of pregnancy is required.
The Supreme Court in the case of Anil Kumar Malhotra v. Ajay Pasricha (CR 6337/2011), dismissed a husband’s petition seeking damages from his wife as she had terminated her pregnancy without his consent.
In recent years, Indian abortion laws have become quite progressive, and women finally have assurance of their rights to abortion. However, since there’s no mention of the father’s rights in abortion, there’s a long way to go before an ideal law is in place for abortion. This may seem unfair to some, but since our Constitution of India guarantees equality as a basic human right, minor changes in favour of fathers’ rights are expected to achieve equality further. Since both parents are responsible for childbirth, the wants of both parents shall be considered for an abortion.
