By Dr Swati Jindal Garg
Margaret Sanger has said: “No woman can call herself free until she can choose consciously whether she will or will not be a mother.” The latest debate arose due to a split verdict on the petition under Article 32 of the Constitution of India for termination of a 26-week pregnancy given by a Supreme Court bench that had voiced two opposite ideas of rights in such matters.
It all began with a split verdict wherein Justice BV Nagarathna granted permission for termination because “the interest of the petitioner must be given more preference” while Justice Hima Kohli refused permission out of concern for the “viable fetus”. Chief Justice of India (CJI) DY Chandrachud, heading a different bench, also pointed to the rights of the unborn child. These two profoundly different perspectives mirrored a confusion that extends to the masses wherein the issue always remains the same—do we think of the one that lives i.e. the pregnant woman or the one that is about to come to this world i.e. the unborn child?
The legal framework of India qua abortion has been set out in the Medical Termination of Pregnancy (MTP) Act, 1971, whereunder, abortion has been legalised, subject to certain gestational limits for pregnancies that may be aborted being raised by the MTP (Amendment) Act, 2021, to a period of 24 weeks. Section 3(2)(a) of the MTP Act, 1971, permits the termination of pregnancy where the length of pregnancy does not exceed 20 weeks. Clause (b) of this sub-section permits termination where the length of the pregnancy exceeds 20 weeks, but does not exceed 24 weeks for such categories of women “as may be prescribed by Rules made under this Act”. However, an opinion must be formed by not less than two registered medical practitioners that inter alia “the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health”. The rules framed under the MTP Act, 1971, for the purpose of “categories of women” as mentioned in Section 3(2)(b) includes categories of women, such as divorcees, widows, minors, disabled and mentally ill women and survivors of sexual assault or rape. Initially, the rules excluded unmarried women from its purview. However, the Supreme Court in X versus Principal Secretary Health, Delhi, interpreted Rule 3B to include “unmarried women” as well.
The current debate in the petition filed before the Supreme Court, however, started with the intervention of the centre, wherein it stated that the medical board found the fetus had a viable chance of being born, and this is what really undermined the petitioner and caused the split between Justices Nagarathna and Kohli as previously both the judges had jointly ruled for “the right of a woman over her body”. Due to the split verdict, the matter was then taken up by a three-judge bench, comprising CJI DY Chandrachud, Justices JB Pardiwala and Manoj Misra wherein the CJI remarked that while it is cognisant of the autonomy of the mother, the Court must “also think of the rights of the unborn child”.
The bench was basically facing the unenviable dilemma that if the woman delivers a few weeks later, the child would have a “chance of survival”, else would have “mental and physical deformities”. It also noted that the other option would be for the Court to allow “foeticide”. “Choice is either we kill the child or have a deformed child by delivering now…? Of course, we will not kill the child in the facts of this case,” the CJI observed.
The bench then went on to direct the All India Institute of Medical Sciences (AIIMS), New Delhi, to medically examine the petitioner in order to apprise it on whether the foetus suffered from any substantial abnormalities. It also wanted to know from the AIIMS whether there was any evidence to suggest that the continuance of pregnancy to term would be jeopardised by the drugs that the petitioner was purportedly taking for postpartum psychosis.
The bench felt compelled to seek this information from the AIIMS as under the MTP Act, 1971, there are only two exceptions under which termination of a pregnancy that has crossed the 24th week can be allowed. These exceptions are: (i) where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a medical board [(Section 3(2B)], and (ii) if a registered medical practitioner formed an opinion in good faith that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman (Section 5).
While the woman sought termination of her pregnancy, asserting that she was not physically, mentally, psychologically or financially prepared to continue with the unwanted pregnancy, the centre opposed the same on the grounds that pro-choice could not mean the right to extinguish the life of an unborn child.
Justice Nagarathna, taking into consideration that the petitioner had remained determined about her decision that she did not wish to carry her pregnancy to term, reiterated her stance that it is the mother who holds the bodily autonomy to make the decision, saying: “Courts cannot substitute their view in the matter with that of the decision of the petitioner. What is to be focused upon is, whether the pregnant lady intends to give birth to a child or not.” She also observed that a foetus is dependent on the mother and cannot be recognised as a separate, individual personality from the mother as its very existence is owed to the mother. “It would be incongruous to conclude that the foetus has a separate identity from the mother and in spite of the physical or mental health of a mother being under threat, she will have to continue her pregnancy until the foetus is born which would endanger her delicate health. Such a position is contrary to Articles 21 and 15(3) of the Constitution of India which recognise the right to life and liberty, and particularly those of a woman,” she added. Justice Nagarathna also took into consideration the delicate mental health of the petitioner (postpartum depression after the birth of the second child) for which she is under medication.
The three-judge bench of the Supreme Court, on the other hand, observed that although women’s autonomy undoubtedly is paramount, the rights of the unborn child were equally important, adding that it could not direct doctors to commit an act of foeticide.
The progressive stance of the Supreme Court qua abortions in the past can be ascertained by its landmark judgement given in X vs the Principal Secretary Health and Family Welfare Department & Another wherein it emphasised that in a gender-equal society, it is imperative that interpretation of the MTP Act and Rules consider current social realities. Speaking for the bench, CJI Chandrachud therein noted: “A changed social context demands a readjustment of our laws. Law must not remain static and its interpretation should keep in mind the changing social context and advance the cause of social justice”. This judgment and the recent MTP (Amendment) Act together significantly expanded the scope of abortion rights in India.
The current stance taken by the apex court qua the case under discussion, however, can be said to be a digression from its previous one as the Court has gone ahead and rejected the young woman’s plea for termination of her over 26-week healthy foetus on account of her illness. The Court said the foetus was healthy and the AIIMS medical board found no abnormality with it. “The length of the pregnancy has crossed 24 weeks and it is approximately 26 weeks and 5 days old. The medical termination of the pregnancy cannot be permitted,” the bench said.
While most have opposed the judgment, calling it regressive, there are many who have hailed it as being pro-life. Women activists have strongly come forward asserting that this is a dark day for women activism in India as a young woman who could have gone to shady allies to get her unborn child aborted, displayed faith in the Indian judicial system and approached the apex court of the country, and now will live to pay the price!
For decades, the overwhelming global trend has been towards liberalization of abortion laws and increased access to abortion services. Since 1994, nearly 60 countries have liberalized their abortion laws to expand the grounds under which abortion is legal. The Indian law itself was amended to increase the legal time period till which a foetus may be aborted from a period of 20 weeks to 24 weeks.
The question that now looms is where to draw the line? Who to give primacy? The one alive? Or the one who is yet to come…?
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi