The story so far: A married woman 26 weeks pregnant has approached the Supreme Court seeking to terminate her pregnancy citing inability to take care of the child due to post-partum depression and other health issues. She has two other children. The Supreme Court on October 9 agreed to her plea, but two days later, a two-judge Bench of Justices Hima Kohli and B.V. Nagarathna delivered a split verdict when the government brandished a report from the All India Institute of Medical Sciences (AIIMS) which said that the foetus was viable and had a heartbeat. Aborting it at this stage would mean either putting a stop to the heartbeat or delivering the baby prematurely which might lead to severe complications both mental and physical for the child. The case was then referred to a larger Bench headed by the Chief Justice of India, which has observed that the highest court of the land cannot overlook the rights of an unborn child thus igniting a pro-life versus pro-choice debate.
What does the MTP Act say?
According to the Medical Termination of Pregnancy (MTP) Amendment Act 2021, opinion of only one registered medical practitioner will be required for the abortion of a foetus up to 20 weeks of gestation and of two for the termination of pregnancy from 20 to 24 weeks of gestation. The opinion of a state-level medical board is required for abortions over 24 weeks, in case of suspected foetal abnormalities.
How is the 2021 law different from the earlier 1971 MTP Act?
The 2021 Act increased the upper gestation limit from 20 to 24 weeks for special categories of women, including survivors of rape, victims of incest and other vulnerable women like differently abled and minors. A confidentiality clause was added which said that the name and other particulars of a woman whose pregnancy has been terminated cannot be revealed except to a person authorised by law. It also extended MTP services, under the clause of failure of contraceptive, to unmarried women to provide access to safe abortion based on a woman’s choice, irrespective of marital status.
What is the global trend on abortion laws?
Globally, there has been a trend towards liberalisation of abortion laws and increased access to abortion services. Since the early 1990s, nearly 60 countries across the world have eased abortion laws to expand the grounds under which abortion is legal. Only four countries, namely the U.S., El Salvador, Nicaragua, and Poland have removed legal grounds for abortion during this time period. Most notably, the U.S. Supreme Court eliminated the constitutional right to abortion in 2022.
What arguments did SC judges give while delivering a split verdict on the case?
A two-judge Bench of Justices Kohli and Nagarathna first allowed the woman to end her pregnancy, then withdrew the verdict and differed on whether the abortion could go forward. This was following a medical report from AIIMS that said the foetal heart would have to be stopped as part of the procedure. To this, Justice Kohli said she would not proceed with the earlier decision wondering which court could ask to stop the heartbeat of a foetus that has life. However, Justice Nagarathna differed and said that the petitioner was determined about her decision to not proceed ahead with her pregnancy triggering a pro-life versus pro-choice debate. The petitioner through her counsel had argued that she was asking for her rights under Article 21 (protection of life and personal liberty), which overrides the MTP Act.
Is a foetus a living being? What does the law say?
According to Dr. Arathi P.M., Assistant Professor, School of Indian Legal Thought, Mahatma Gandhi University, Kerala, the Indian legal scenario is not clear on whether the foetus is a living being or not. A pro-choice discourse, according to her, is not a materially and politically conducive argument for Indian society. Even if the Supreme Court takes a pro-choice view in this case, it will not be able to set a precedent for the future. The reason, she says, is that the Indian public health system is not geared up to address this and that private health care is very expensive. So, getting a safe abortion in India has become very precarious.
What were the observations by the CJI-headed Bench?
On October 12, the top court asked the woman to reconsider her decision to terminate the pregnancy and carry the foetus for a few more weeks so that the child isn’t born with any deformities. The Bench observed that there are rights of the unborn child too and that a woman’s autonomy is also important. The Bench said that the rights of the unborn child should also be balanced.
What is the way forward?
The petitioner’s counsel and the Additional Solicitor General have both said that the 27-year-old woman was unwilling to continue with her pregnancy even after the AIIMS report. She has said that she was under medication for post-partum depression and other medical issues. The three-judge Bench, headed by the CJI, asked the AIIMS medical board to examine if there is any abnormality in the foetus. The apex court also asked the medical board to examine the health status of the woman, who says she is suffering from depression and severe post-partum psychosis. The government has also offered to take care of the child and put it up for adoption if the woman agrees to carry it full term.
- The 2021 Act increased the upper gestation limit from 20 to 24 weeks for special categories of women, including survivors of rape, victims of incest and other vulnerable women like differently abled and minors.
- Globally, there has been a trend towards liberalisation of abortion laws and increased access to abortion services.
- According to Dr. Arathi P.M., Assistant Professor, School of Indian Legal Thought, Mahatma Gandhi University, Kerala, the Indian legal scenario is not clear on whether the foetus is a living being or not.
