A mother of two seeks termination of pregnancy after 26 weeks; drama unfolds as two separate benches of the Supreme Court, go forward and then back on the woman’s abortion rights—CJP looks at the October 2023 case in-depth and also offers insights in how High Courts –also constitutional courts –have expressed decidedly differing views.
Before delving deep into the controversial October 2023 case in the Supreme Court, it is worth, at the start of 2023 to look at a more recent instance of the Supreme Court stepping back from allowing abortion rights to a mother.
On January 31, 2024, the Supreme Court declined the plea of a widow who sought to end her 32-week pregnancy, asserting that the unborn child is healthy. The court underscored its obligation to safeguard both the well-being of the unborn and that of their mother. Justice Bela M Trivedi stated that, “There is no abnormality in the foetus. It is a full-fledged, normal-bodied child. This is not the case we should entertain.” Despite the petitioner’s argument citing mental anguish and depression due to the pregnancy, her petition was dismissed with an order for government care. This ruling followed a reversal by the Delhi High Court which had initially approved termination but changed course based on medical advice indicating potential health challenges for both body and mind in case of live birth. Following this judgment, on February 1, 2024, the Delhi High Court denied termination of pregnancy of a 20-year-old unmarried woman stating, “foeticide cannot be permitted’ and that, “You’ll have to induce the pregnancy.”
Now, the October 2023 case, in-depth
The Court was presented with a plea from a mother of two, who, on 4 October 2023, sought termination of her over 24-week pregnancy. Her decision stemmed from the profound impact of postpartum depression and overwhelming economic and emotional distress. This brave 27-year-old petitioner had been undergoing treatment for depression and harboured genuine concerns about potential deformities in the foetus due to the medication.
Justices Hima Kohli and B.V. Nagarathna, initially hesitant to entertain the case, raised concerns that this was not a typical instance of forced pregnancy and that allowing late petitions might set a precedent for hesitancy. However, on October 5, 2023, they directed the All India Institute of Medical Sciences, New Delhi (AIIMS), albeit reluctantly, to establish a medical board to evaluate the petitioner’s physical and mental well-being. Dr Amit Sharma, representing the desperate petitioner, revealed to the court that ‘Lactational Amenorrhea’ had, in fact, concealed the pregnancy until after the 24-week milestone had passed.
According to the report submitted by AIIMS on October 6, 2023, it was deemed feasible for the child to survive outside of the womb. Based on this assessment, Justices Kohli and Nagarathna granted permission on October 9 for the petitioner to terminate her pregnancy, affirming “the right of a woman over her body.” Furthermore, they ordered that the procedure be carried out at AIIMS without delay.
On October 10, Additional Solicitor General Aishwarya Bhati received communication from Dr. K. Aparna Sharma, a Professor at the Department of Obstetrics and Gynaecology at AIIMS and a member of the Court-designated medical board. In her correspondence, she expressed concerns about the potential challenges associated with caring for a preterm baby with low birth weight in an intensive care unit, emphasizing the high risk of immediate and long-term physical and mental disabilities that could significantly impact the child’s quality of life. The email also raised questions about what should be done regarding the baby’s situation. Receiving this, Bhati quickly approached the Chief Justice, bypassing the formal application process of the court, to request a reconsideration of the Order issued by the two-judge bench. She referred to an email outlining two options: terminating the pregnancy, involving foeticide or stopping the child’s foetal heart; or delivering a preterm baby that would need special care and attention. The Court requested Bhati to craft a plea for reconsideration and instructed that the termination be temporarily paused.
The Chief Justice regarded Bhati’s request by constituting a special bench headed by Justices Kohli and Nagarathna. In the late afternoon of October 11, 2023, the Court heard the case again. This time, all eyes were on the pregnant mother herself as she took her place in front of the bench. In an emotionally charged affidavit, the petitioner declared, “I have made a wilful and conscious decision to medically terminate my pregnancy. I do not want to keep the baby even if it survives”. The bench rendered a split verdict.
Justice Kohli stated that “The initial report itself was fairly hedged and ambiguous”. She found clarity in the doctor’s email that offered a “correct and clear perspective” on the case’s issues. With unwavering determination, she declared, “My judicial conscience does not permit the petitioner to terminate the pregnancy.” The implications for the reproductive rights of women or the rights of the child remained shrouded in uncertainty in this opinion.
Justice Nagarathna, contrastingly, endorsed the petitioner’s affidavit, hailing it as “categorical”, “clear” and emblematic of “strong determination” to terminate the pregnancy and forgo keeping the child if it survives. Resolutely asserting that “Her decision must be respected,” Justice Nagarathna drew inspiration from X v Health & Family Welfare Department (2022), a landmark case acknowledging women’s right to reproductive autonomy.
The Chief Justice, DY Chandrachud, was then faced a divided decision and proceeded to establish a three-judge panel consisting of himself, along with Justices J.B. Pardiwala and Manoj Misra.
In the hearing scheduled on October 12, 2023, the CJI’s three-judge bench grappled with an agonising choice presented by Dr Sharma in her email – halt the foetal heart or proceed with premature delivery, potentially subjecting the child to enduring mental and physical challenges.
Concerning her plea, ASG Bhati contested that reproductive rights are not absolute. The Court, in an earlier judgement, removed any distinction between the rights of unmarried and married women. She also emphasised that there were no “exceptional circumstances” in the present case as stipulated by the Medical Termination of Pregnancy Act, 1971.
Additionally, the Bench vividly expressed that it went against the Supreme Court’s constitutional mandate to either “end the pregnancy or bring a child into a world of lifelong deformity.” Justice Pardiwala presented the dilemma—the petitioner sought relief from the current pregnancy, yet was clear in not wanting to stop the foetus’ heart. The expert view opposed her request for pre-term delivery due to potential mental and physical deformities in the child. CJI Chandrachud highlighted India’s “harsh reality” that children with disabilities were less likely to be adopted. The Justices explained to the petitioner that her plea had placed the court in a delicate predicament and as the hearing ended, they asked the counsel to approach the petitioner with the prospect of continuing the pregnancy for another eight weeks to ensure that the child would be birthed without any deformities.
On October 13, 2023, as the hearings resumed, ASG Bhati informed of the failure of conversations with the petitioner. While advocating for the unborn child, she laid forward the following arguments:
- That the Medical Termination of Pregnancy Act, 1971 embraced a pro-choice perspective by empowering individuals to make their own reproductive decisions while also considering the rights of a viable foetus. Citing Sections 3, 3(2)(b), and 5 of the MTP Act, Bhati highlighted how the legislation carefully avoided terminating a viable foetus except in cases involving danger to the mother’s physical and mental well-being, risk to her life, or “foetal malformation” with a significant threat to survival. The ultimate intention of the lawmakers being safeguarding the life of the foetus beyond the 24-week milestone.
- The AIIMS Medical Board’s opinion highlighted that the heart of the foetus to be not stopped. Doing so would lead to foeticide, as the email by Dr. K. Aparna Sharma explained. As per Bhati, the email and the report must have high regard in considering the petitioner’s choice
- That a fighting chance to survive must be given to the unborn foetus. The mother-petitioner herself has contemplated the abortion several times since the judicial process began.
Contrastingly, Advocates Amit Mishra and Colin Gonsalves laid down the following points
- The term “life” under Section 5 of the MTP Act must have a broad interpretation similar to the interpretation of the term under Article 21 of the Constitution. However, Justice Chandrachud explained that this cannot be done as this would mean that a woman be given the “overriding” power to terminate the pregnancy at even 35 and 36 weeks.
- Advocate Amit Mishra reiterated the facts of the case, explaining that she had developed postpartum psychosis shortly after the delivery of her second child in September 2022. He emphasized that postpartum depression and psychosis are different, highlighting symptoms such as sleep disturbances, hallucinations, suicide attempts, and harm to her children. Given these circumstances, he questioned how she could raise a third child.
- As per International Laws, unborn children currently remain without legal rights, being yet to attain personhood. This stands in stark contrast to the paramount importance placed upon protecting and upholding the rights of living women.
- Gonsalves emphasised to the Court that every abortion procedure involves medically quieting the heartbeat. He pointed out that this is a directive from the government and does not necessitate approval from the Court
The Bench, after hearing both sides, stated that they cannot adhere to international standards, emphasised the progressive nature of the Indian laws on abortion, and concluded that they are “averse to issue a direction” to still the heartbeat of the foetus. AIIMS, therefore tasked with conducting the birth at full term, while the Union was to provide any necessary assistance should she (the mother) decide to entrust her child for adoption.
The complete order can be read here:
How does this decision take us “two steps backwards”?
In September 2021, a wave of change swept across India with the enactment of the Medical Termination of Pregnancy Act, 2021. This ground-breaking legislation extended the upper gestational limit for abortion from 20 to 24 weeks, marking a significant leap towards more progressive and inclusive abortion laws in India. The amendment was ignited by a chorus of voices from women seeking safe medical support for unwanted pregnancies beyond the existing limits, driving its heralded arrival as an essential step forward.
Following this, in September 2022, the Court allowed the termination of a 22-week pregnancy. The Court declared that any differential treatment based solely on marital status violates the constitution. It acknowledged the unaddressed plight of survivors of marital rape dealing with unwanted pregnancies. Additionally, the Court said that the choice to continue a pregnancy or not is deeply embedded in a woman’s power over her own body and her freedom to carve out her destiny. It is an acknowledgement that an unplanned pregnancy can profoundly impact a woman’s life, throwing off her education, career, and emotional equilibrium.
The complete order can be read here:
Unfortunately, this pro-rights movement faced a significant blow with the October 2023 judgement, shedding light on the extensive work still needed for India to embrace a truly progressive and rights-oriented approach to medical termination of pregnancies.
Via the October 2023 judgement, it becomes apparent that – the Court’s perception of mental illness as a basis for termination remained shrouded in ambiguity; that for the woman to fully exercise her reproductive autonomy, she must demonstrate the risks of her situation and her unequivocal necessity for an abortion.
Problematic notions the case brings forward
The system turns the expectant individual into a challenger against pregnancy, as was evident in the October 2023 ruling. The Court restricted a woman’s control over her reproductive choices by rigidly comparing her rights to the criteria outlined in Sections 3(2B) and 5 of the MTP Act. The combination of legislation and judicial understanding ultimately established a structure where a woman’s autonomy abruptly ended at 24 weeks, giving way instead to doctors’ and judges’ subjective assessments of circumstances. Challenging the fragmentation of women’s bodies is, therefore, essential, and it’s crucial to place the pregnant person at the centre of discussions about reproductive rights. Ensuring guaranteed rights must result in ensured access, where decision-making power lies more with women whose bodily autonomy is at stake than lawyers, judges, or doctors.
Consequently, the procedural history of the case indicates the loss of the woman’s voice and rights. The back-and-forth between lawyers, doctors, and judges reflected a systemic dismissal of the challenges faced by someone seeking a late-term abortion. Furthermore, it’s infuriating that those seeking abortion are frequently forced to justify why they should have access to it. This was glaringly evident when the Court dismissed this as not being a situation of sexual assault.
What followed the judgement?
Following this judgement, a shadow of doubt is reflected in contrasting decisions of the Supreme Court that sets the precedents for subordinate courts. With this ping-pong of progressive-regressive judgements, the subordinate courts face a challenge in providing women with the ultimate right to decide the faith of their pregnancy. A pattern of backtracking on the progressive judgement often leads to the unevenness of justice delivery, especially when it comes to setting a precedent for the pan-India subordinate courts. On the same set of facts, a court in Maharashtra could be taking on a broad-minded approach whereas a court in Kerala could be taking a regressive stance.
Kerala to Delhi, the courts move backwards
In a recent heart-wrenching case, the Kerala High Court decided to deny the plea of a 12-year-old girl seeking permission to end her pregnancy, which resulted from an incestuous relationship with her minor brother. Citing that the termination of the pregnancy is not “tenable” as 34 weeks had been completed and the foetus was fully developed. Heavy reliance was placed on the opinion of the medical board which inclined towards the completion of pregnancy.
The complete order can be read here:
January 2024, the Delhi High Court reversed its decision to allow the termination of a 29-week-long pregnancy due to the woman’s mental illness following her husband’s passing. The new order was influenced by requests from the Ministry of Health and Family Welfare and AIIMS, emphasizing that the foetus had a good chance of survival and urging the court to consider the rights of the unborn child. Once again, “aversion” was shown towards abortion due to the potential viability of the foetus.
The complete order can be read here:
Bombay HC shows the way
Contrastingly, the Bombay High Court on January 20, 2024, dismissed the narrow views of the medical board and took a stand in favour of termination despite an advanced gestation period and non-life-threatening issues with the foetus. The court strongly asserted that in cases of severe foetal abnormality, the length of pregnancy should not be a deciding factor. Citing a ruling from September 2022, the High Court emphasized women’s right to reproductive autonomy, bodily autonomy, and decisional freedom. It condemned any denial of a woman’s dignity and her reproductive rights by refusing her request for abortion. Furthermore, it highlighted that societal and economic factors must also be considered while making such crucial decisions. The court also observed that the MTP Act does not answer everything, although it was ahead of its time.
The judgement said, ”In the cold sterility of a legislation, we must discern where justice lies when it is to be applied to the human condition. This is not a case where a blanket invocation of this or that provision will provide an answer”, adding, “justice may have to be blindfolded; it can never be allowed to be blindsided.”
It also emphasised the need to acknowledge the socio-economic status of the woman, saying, “In cases such as these, we believe Courts must calibrate themselves to not only the facts as they stand but must also consider that what these cases present are, above all, profound questions of identity, agency, self-determination and the right to make an informed choice. We will not ignore the Petitioner’s social and economic condition. We cannot”.
“The right to decisional autonomy also means that women may choose the course of their lives. Besides physical consequences, unwanted pregnancies which women are forced to carry to term may have cascading effects for the rest of her life by interrupting her education, her career, or affecting her mental well-being,” the HC said.
The High Court, with resounding clarity, declared that “depriving women of autonomy not only over their bodies but also over their lives would be an affront to their dignity”.
The complete order can be read here:
Conclusion
In the murky depths of clandestine abortion practices, a stark and sobering truth emerges wherein back-alley abortions are a reality. Within India’s legal framework, strides toward progressive jurisprudence are often muddled by the infiltration of moral objections, weaving a tangled web where legality clashes with entrenched societal beliefs. The narrative surrounding rights becomes obscured by the arcane and patriarchal notion that a woman’s autonomy is subject to communal judgment, casting a foreboding shadow over the preservation of individual freedoms in the face of traditional norms. This infiltration extends its tendrils even into the hallowed halls of justice, posing a formidable challenge to the hard-won advancements in defiance of prevailing public morality, and perpetuating disparities that impede the progress of gender equality initiatives. As we confront this disheartening bias, it becomes increasingly imperative to illuminate the obscured pathways to justice, ensuring that the light of human rights and individual agency shines through the darkness of societal constraints.
(This analysis has been researched by CJP’s legal team including Karishma Jain)
[1] The absence of lactation in breast-feeding mothers
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Bodily autonomy & safe abortion, a right under Article 21