The author, Yashasvi Chaudhary, is a second year student of Faculty of Law, University of Delhi.
It has been a year since the Supreme Court amended abortion rights, in yet another judgement, namely ‘X v Union of India’ on termination of pregnancy dated 16 October 2023. The decision underscores how ‘Abortion Rights’ in India come along with terms and conditions, questioning reproductive autonomy of a woman; a grey area. Article 21 of the Constitution safeguards a woman’s right to terminate her pregnancy when her physical or mental well-being is endangered. Hence, ideally it should be that a woman has sovereign authority over her body and should be the sole arbiter in deciding whether or not to proceed with an abortion.
Facts of the Impugned Case
A twenty-seven-year-old married woman with two children aged 4 and 1 submitted a petition invoking Article 32. After delivering their second child, the couple consciously embraced the Lactational Amenorrhea Method (LAM), a contraceptive approach relying on the absence of menstruation due to ongoing breastfeeding. The couple wassatisfied with their family size after the second child’s birth. However, the woman discovered her pregnancy during a visit to the gynaecologist, prompted by feelings of weakness, nausea, dizziness, and abdominal discomfort. In her petition, she asserts that she lacks the physical, mental, psychological, and financial preparedness to continue with this unplanned pregnancy. On a modest income, her husband already shoulders the responsibility of supporting her, their two children, his elderly parents and a sister. In the face of thisfinancial strains, it is impractical to add another member to the family.
Her initial visit to the gynaecologist occurred after she delivered her second child. The subsequent ultrasound revealed her pregnancy at approximately twenty-four weeks. Despite seeking termination from various doctors and hospitals, she and her husband faced refusals due to the statutory limitations imposed by the Medical Termination of Pregnancy (MTP) Act. This Act restricts termination to 20 weeks, extending to 24 weeks in cases of forced pregnancy. Given her already advanced stage, these legal constraints present a considerable obstacle to their request for medical termination.
The Scope of The Medical Termination Of Pregnancy (MTP) Act
The Medical Termination of Pregnancy (MTP) Act 1971 governs the conditions under which a pregnancy can be terminated. It underwent a significant amendment in March 2021– extension of the upper limit for termination of pregnancy from 20 weeks to 24 weeks in certain circumstances, such as when the continuation of the pregnancy would endanger the life of the mother or cause grave injury to her physical or mental health. This extension was based on the recognition that many women may be unable to access abortion services earlier due to legal restrictions and that continuation of pregnancy beyond 20 weeks may pose a significant risk to the mother’s health or life. The Supreme Court of India, on 29 September 2022, held that all married or unmarried women have the right to a safe and legal abortion up to 24 weeks now under the MTP Act.
Two-judge bench verdicts
By an order dated 09.10.2023, the Court took several factors into notice. Firstly, the Court referred to the case of X vs Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi and Another, stating “the expression ‘grave injury to her physical and mental health’ in Section 3(2)(b) of the MTP Act is used in an overarching and all-encompassing sense. Different categories that have been carved out in Rule 3(B) of the MTP Rules show that women can seek abortion even after 20 weeks, which could be on account of a delay in recognizing their pregnancy or a critical material change in their life circumstances to the point that the pregnancy becomes unwarranted and unviable. Conception in LAM has also been acknowledged as one of the circumstances by the Expert Committee constituted to draft the MTP Rules and draw up categories of women who would qualify under Rule 3(B).Secondly, the Court highlighted its efforts in terminating unwanted pregnancies borne in or out of a marriage. Thirdly, the Court took into account the petitioner’s mental, physical, psychological, and socio-economical health and the effects it would have on the un/born child; keeping in view all these factors, the Court permitted the petitioner to terminate her unwanted pregnancy.
On 10 October 2023, a physician affiliated with AIIMS, who was part of the Medical Board that assessed the petitioner, sent an email to the Additional Solicitor General (ASG). The email conveyed that the foetus exhibited a robust likelihood of survival and sought guidance from the Court on whether measures should be taken to cease the foetal heartbeat. Subsequently, on the same day, the ASG brought the matter before the Bench under the Chief Justice’s jurisdiction. The Chief Justice constituted a two-judge Bench consisting of Honourable Justices Hima Kohli and BV Nagarathna to hear the application seeking the recall of the order issued on 9 October 2023.
The two-judge Bench delivered a split verdict. Hima Kohli J. held that her judicial conscience prevented her from allowing the petitioner to go ahead with the abortion, given the email sent to ASG. Per contra, Nagarathna J. had a different opinion. She highlighted, “The socio–economic condition in which the petitioner is placed and the fact that she already has two children, the second child being only one year of age, and the fact that she has reiterated that her delicate mental condition and health do not support her to continue with her pregnancy must be considered by the Court. I find that her decision must be respected by this Court.” Nagarathna J. also mentioned in her judgement that the identity of a foetus is dependent on its mother and cannot be recognized as a personality apart from that of the mother as its very existence is owed to the mother. It was stated that such a position is contrary to Article 21 and 15(3) of the Constitution of India which recognize the right to life and liberty and particularly those of a woman. Consequently, Nagarathna J. upheld the order dated 9 October 2023, stating that it does not need to be recalled.
Following the split verdict, the application was directed to the Hon’ble Chief Justice of India (CJI) to be referred to a larger bench.
The Three–Judge Bench Verdict
In light of the split verdict, the matter was heard by a three-judge bench comprising The Hon’ble CJI D Y Chandrachud, J B Pardiwala J., and Manoj Misra J. The Bench held that abortion could not be granted since the length of the pregnancy had crossed twenty-four weeks, it was thenapproximately twenty-six weeks and five days. The Court also highlighted that “There are no ‘substantial foetal abnormalities’.” The Court held that it cannot direct the doctors to stop the heartbeat of the foetus and directed AIIMS to conduct the delivery.
Concluding the Err
Patriarchal norms are reinforced every time women are denied the right to make choices about their bodies and lives. The Medical Termination of Pregnancy (MTP) Act was intended to be more inclusive and be understanding of various circumstances surrounding a pregnancy. The principle of autonomy is central to reproductive rights, particularly a woman’s control over her body. This judgment infringes upon the petitioner’s right to make decisions about her reproductive health, a cornerstone of personal liberty and bodily autonomy. By overriding her decision, the Court is implying that the state’s interest or the potential life of the foetus outweighs the woman’s right to self-determination. The judgment does not seem to give sufficient weight to the potential mental and physical health risks associated with continuing an unwanted pregnancy. The World Health Organization, on the other hand,emphasizes the importance of considering both physical and mental health in decisions about pregnancy termination. The stress, anxiety, and possible depression resulting from carrying an unwanted pregnancy to term can have long-lasting effects on a woman’s health, which the judgment seems to overlook. Furthermore, the petitioner’s socioeconomic circumstances are critical. Her existing financial responsibilities, including the care of two young children and dependent family members, have been insufficiently considered. Socioeconomic status can significantly impact a woman’s ability to provide for and nurture an additional child, which directly relates to the well-being of the family and the unborn child.
The court’s strict interpretation undermines the legislative intent behind the MTP Act’s amendments, which aimed to empower women in difficult situations. Ultimately, this judgment highlights a significant gap between legal frameworks and the lived realities of women seeking abortions. It raises critical questions about the extent of state intervention in reproductive choices, and the balance between foetal rights and women’s autonomy. By prioritizing potential life over the express wishes and well-being of the woman, this decision represents a regression in the journey towards comprehensive reproductive rights in India, reinforcing the notion that women’s choices about their bodies are still subject to external control and scrutiny.