Woman’s Autonomy Vs Rights Of Foetus: Supreme Court Rules In Favour Of Foetus, Reject’s Woman’s Plea To Abort 26-Week Pregnancy

Deciding in a case that dealt with a dilemma of a woman’s bodily autonomy against an unborn foetus’s rights, the Supreme Court on Monday rejected a woman’s petition to abort her 26-week pregnancy. 

The SC bench headed by Chief Justice of India (CJI) DY Chandrachud ruled that abortion could not be permitted as there was no immediate threat to the woman and there was no foetal abnormality. 

In the absence of any such conditions, the Medical Termination of Pregnancy (MTP) Act, 1971 does not allow the pregnancy to be aborted, ruled the Apex Court. 

The SC directed the state to bear all medical costs in the case and said the woman was at liberty to keep the child or put them up for adoption. 

Earlier, the SC had said that “we cannot kill a child” in a hearing and that there was a need to “balance out the rights of the unborn child”

The case concerns a 27-year-old married woman who already has two children and is now in her third pregnancy. She had sought the termination of her pregnancy as she said she was not in a position to raise a third child “emotionally, financially and mentally”. A medical board looking into the case confirmed that she was suffering from post-partum psychosis. 

In India, amendments to the Medical Termination of Pregnancy (MTP) Act of 1971, permit abortion with the assent of one medical practitioner within 12 weeks and with the opinion of two medical practitioners within 20 weeks. For ‘exceptional cases’, abortion is allowed up to 24 weeks for certain classes of women, as defined under the MTP Rules.

With respect to the current case, the Apex Court had on October 9 allowed the woman to proceed with medical termination of pregnancy after taking note of her mental condition. The petitioner discovered her pregnancy late due to Lactational Amenorrhea, a condition where breastfeeding suppresses menstruation. The court was also informed that the woman also attempted to die by suicide. Hence, the court reasoned that an unwanted pregnancy due to failure of contraceptive methods is the same as a forced pregnancy for which termination is legally allowed up to 24 weeks. 

However, a day after, AIIMS authorities wrote to Additional Solicitor General Aishwarya Bhati —who represented the government in the matter— saying the foetus appeared to be “viable” and had a “strong possibility of survival”, the matter was again referred to a two-judge women bench that pronounced a split verdict on the Centre’s plea for recall of its October 9 order. While Justice Hima Kohli said that her judicial conscience does not allow her to permit termination, expressing disagreement, Justice BV Nagarathna said the woman’s decision must be respected.

The matter was then put before a bench headed by the Chief Justice of India (CJI) that made important observations about how the rights of a woman “must trump” when it comes to abortion and the need to “balance out the rights of the unborn child”. 

“There is no doubt that our law is far ahead of other countries. We will not have a Roe versus Wade situation here. Our law is liberal and pro-choice,” the CJI observed. While courts in India have been liberal in implementing the MTP Act, the test of “foetal viability” as a benchmark to allow abortion has not been brought up in previous abortion cases. The hearing has now been posted for October 16.

At Outlook, reporters have covered the challenges with abortion in India, despite the existence of a relatively liberal law. While the MTP Act allows all women in India to abort a foetus up to 20 weeks of pregnancy and 24 weeks for women under special conditions, thousands have their reproductive rights denied and physical autonomy curtailed, mainly by the patriarchal attitudes of doctors and service providers and improper implementation of abortion and anti-foeticide laws. 

Several judgments in top courts of India have spelt out that a pregnant woman’s right to decisional autonomy takes precedence over foetal rights. In a watershed moment in September 2022, the Supreme Court of India declared that all women have the right to safe abortion, irrespective of their marital status. Striking down the validity of the exclusion of unmarried women from Rule 3(b) of MTP Rules, CJI DY Chandrachud said, “The interpretation of MTP has to reflect the societal realities. The 2021 Statement of Objects doesn't differentiate between married and unmarried women.”

Outlook had earlier reported on how despite progressive judgments on abortion, physical and mental trauma that an unwed woman goes through when she visits one of the country’s top hospitals for the procedure, still persists in India. 

Access to abortion services is still hampered in the country due to service provider bias and stigma. Outlook has reported how many women resort to unsafe methods of abortion due to the fear of their family finding out that they had an abortion, shame, and stigma. 

Apart from India, Outlook has extensively covered the fallout of the US Supreme Court’s move of overturning the Roe vs Wade judgment that had previously protected a woman’s right to abortion under the constitutional right to privacy. 

In the context of the Supreme Court’s judgement amid debates over a woman’s bodily autonomy and the rights of a foetus, we take a look at some stories of how women’s reproductive rights have often taken a backseat in our society and the right to terminate her own pregnancy is never in the woman’s hands.