We Need A Rights-Based Abortion Law

There is a sentence buried in Indian constitutional jurisprudence that nobody taught in school, that no government campaign has ever printed on a wall, and that two court decisions in the span of four months have forced back into the open: a person's body is not State property.

It seems obvious. It is, apparently, not settled. And until it is settled not merely in Supreme Court judgments but in the statute books, in hospital protocols, in police procedures, and in the moral imagination of legislators, children will continue to be sent to courts to argue for rights the Constitution already promised them.

The language that chose sides

In January 2026, the Bombay High Court declined to permit an eighteen-year-old survivor of sexual violence, twenty-eight weeks pregnant, to terminate her pregnancy. What the court offered instead was a package: State-funded delivery, a Child Welfare Committee on standby, an adoption pathway. It was presented, apparently in good conscience, as a solution. It solved nothing the young woman had actually asked about. The question before the court was not who would raise this child. It was whether the Constitution permits the State to compel a young woman to give birth against her will. Adoption may resolve custody. It does not resolve gestation, or the nine months of irreversible physical experience between a woman and the birth the court was insisting upon. The court gazed at the conclusion of the story and called it resolution, while declining to examine what the story actually contained.

The court's use of the word "foeticide" to describe this woman's request was not casual imprecision. It was a jurisprudential choice, and an unreasoned one. Language in judicial decisions constructs the normative frame within which reasoning proceeds. The moment a court reaches for "foeticide," the frame has already shifted: the foetus acquires something resembling standing, and the survivor is moved from the centre of the legal inquiry toward its periphery, becoming less a person with rights the court must vindicate and more a body whose choices require justification and oversight. Philosopher Martha Nussbaum has argued that what we perceive as morally salient depends entirely on the narrative lens we bring to a situation. The Bombay High Court had chosen its lens before committing a word of reasoning to the page. Indian constitutional law has never formally adopted a foetal rights framework. The High Court did not formally hold this either. But it imported the logic without the argument, and that is precisely how constitutional erosion proceeds: not through dramatic reversals, but through quiet linguistic choices that redistribute moral weight before the analysis begins.

Medical advice is not Sovereignty

On April 30, 2026, a Supreme Court bench of Chief Justice Surya Kant and Justice Joymalya Bagchi declined to undo its earlier order permitting a fifteen-year-old survivor of sexual violence to terminate a pregnancy at thirty weeks. AIIMS had filed a curative petition, bringing the full authority of a premier national institution to bear, seeking to override the survivor's choice in the name of foetal viability and clinical expertise. Justice Bagchi's response was precise: the institution may counsel, inform, and medically assist. It cannot choose. The decision belongs to the survivor and her family.

This deceptively simple statement contains a significant constitutional proposition. What AIIMS was implicitly asserting through its petition is that clinical authority constitutes a form of sovereignty over the patient's body, that when a pregnancy is sufficiently advanced, institutional judgment should displace personal choice. The Supreme Court refused that logic entirely. Medical expertise can inform a decision. It cannot make one. In the distance between those two positions lies a question Indian reproductive rights jurisprudence has circled for decades without fully answering: does a pregnant person hold an affirmative constitutional right to determine what happens inside her own body, or does she merely have access to a regulated procedure, contingent on the approval of others?

The court also urged Parliament, plainly, to amend the Medical Termination of Pregnancy Act and remove gestational time limits for pregnancies resulting from the sexual violation of minor girls. A fifteen-year-old's ordeal had to reach the highest court in the country before anyone in authority said this aloud. She should never have been required to be the occasion for that statement. The secondary violence of being examined, assessed, petitioned against, and litigated over, her body as a site of institutional contest, is itself an injury the law currently provides no language to address.

A structure built for compliance

To understand why these cases keep recurring, you have to understand what the MTP Act is and, more precisely, what it is not. Enacted in 1971 and amended in 2021 to extend termination access to twenty-four weeks for survivors and minors, the Act was never designed to express a right. It was designed to carve a conditional exemption from a crime. Section 88 of the Bharatiya Nyaya Sanhita, which replaced Section 312 of the Indian Penal Code in July 2024, still criminalises abortion. The MTP Act is, structurally, its exception. This makes the framework doctor-centric by design: the pregnant person does not hold a right the law recognises; she presents a condition that the law, under particular circumstances, permits a doctor to address. Every person who enters that system does so already in a posture of supplication.

That architecture also punishes delay, and for minor survivors of sexual violence, delay is rarely a choice. Trauma theorist Judith Herman observed that the most predictable human response to atrocity is to want to banish it from consciousness entirely. For a child who may not fully comprehend what has happened to her body, who lives in a household where disclosure means rupturing everything she depends on, silence is not dilatoriness. It is survival.

The law's clock, indifferent to this reality, runs regardless. Caste-based social pressure, the physical distance between rural communities and registered medical practitioners, police complaints left unprocessed, the absence of trauma-informed protocols at district hospitals, and medical boards operating without statutory timelines: each failure adds days and weeks to the gap between the original harm and the moment a survivor can seek help. Sociologist Veena Das has documented how women navigate structures in South Asia that are nominally protective but functionally exclusionary, where, as she writes, "the state is simultaneously the source of injury and the address of repair." For a minor survivor, that paradox is the reason she arrives late, and finds the law has already moved on without her.

Rights should not be a lottery

The jurisprudential foundation for a rights-based approach already exists and is, by now, substantial. In Suchita Srivastava v Chandigarh Administration, the Supreme Court recognised reproductive choice as a component of personal liberty under Article 21. In its 2022 ruling in X v Principal Secretary, Health and Family Welfare Department, the court extended termination access to unmarried women and adopted an autonomy-centred reading of the statute. The nine-judge bench in Puttaswamy constitutionalised decisional privacy, establishing bodily autonomy as foundational to the self the Constitution protects. April 30 adds to this lineage the explicit principle that institutional authority, even that of a premier national medical institution, cannot substitute for survivor choice.

What these cases collectively describe is a Supreme Court building, incrementally and sometimes reluctantly, a constitutional framework that Parliament has never formally endorsed and the penal code still structurally resists. The gap between what the courts have articulated and what the statute provides has itself become a form of injustice, because access to constitutional rights currently depends on whether a survivor can reach the Supreme Court before her pregnancy advances beyond the point at which lower courts feel entitled to intervene. That is not a rights framework. That is a lottery.

What parliament must repair

Parliament must now do what only it can. The amendment the Supreme Court called for, removing gestational limits for pregnancies resulting from the sexual violation of minors, is necessary but not sufficient. Leaving Section 88 of the BNS unreformed leaves the underlying architecture of criminalisation intact, and with it the supplicatory posture every person seeking termination must assume. Medical boards must operate under statutory timelines, not institutional discretion. Trauma-informed protocols must be mandatory requirements. Accountability for delay, whether by police, medical boards, or courts, must be real and enforceable, because for a minor survivor, every additional week is an extension of the original harm, this time authorised by the State.

A democracy that treats the bodies of its most vulnerable citizens as a question to be resolved by institutional consensus rather than personal sovereignty has not yet finished writing its constitution, whatever the document may say. The Supreme Court has, case by painstaking case, been writing it forward. The children who keep arriving at its doors, asking to be believed, asking to be heard, asking to be left to determine what happens within their own skin, are not anomalies or edge cases. They are the proof of what remains undone. Parliament's amendment will not unwrite what these children have endured. But it can ensure that the law, at last, stops making it worse.


The author is an academic lawyer and public policy consultant. He studied Feminist Jurisprudence and Gender Justice as an optional paper during his undergraduate education at the Faculty of Law, University of Delhi.