Uncertain verdict, unequal access: Navigating through India’s abortion maze Analysing the jurisprudence with regards to the abortion laws in India
04, Jun 2024 | Hasi Jain
The landscape of abortion rights in India is a complex and evolving one. While a landmark amendment to the Medical Termination of Pregnancy Act in 2021 extended the legal limit for abortion from 20 to 24 weeks, it fell short of establishing abortion on demand as an absolute right. This progress is further complicated by the inconsistent application of these laws across different courts.
However, despite this amendment, the interpretation and application of abortion laws by different courts have resulted in a patchwork of conflicting judgments. This inconsistency leaves women facing a confusing and potentially unfair legal landscape, with their access to safe abortion hinging on their geographical location and the specific judge presiding over their case. The lack of uniformity in legal interpretation poses a significant challenge. It creates uncertainty for women seeking abortions and can disproportionately impact marginalized groups who may have limited access to legal resources or face additional societal pressures.
Conflicting Judgments and Discretionary Powers
In April 2024, the Supreme Court allowed the plea of a 14-year-old minor rape survivor to terminate her pregnancy at 28 weeks. The bench comprising CJI DY Chandrachud and Justice JB Pardiwala overturned the Bombay High Court’s decision, citing fewer risks to the minor’s life with the termination than continuing the pregnancy until full term.
The Judgement may be read here:
In February of 2024, the Supreme Court refused a 32-week pregnant widow’s plea for abortion, despite her severe mental trauma and depression. The court’s decision was based on the medical board’s opinion against the termination, citing no abnormalities in the foetus. The bench, led by Justice Bela M. Trivedi, suggested that the woman could consider putting the baby up for adoption after birth.
The bench stated, “There is no abnormality in the foetus. It is a full-fledged, normal-bodied child. This is not the case we should entertain.” The court emphasized the short duration remaining until the natural birth and mentioned that even the government was willing to facilitate the adoption of the child. According to the medical board, inducing a pre-term delivery could pose significant risks to the woman’s life.
The 26-year-old petitioner argued that the pregnancy was causing her severe mental trauma and depression. Her advocate, Rahul Sharma, highlighted that as a widow, continuing the pregnancy was against her choice and would exacerbate her emotional distress. However, the Supreme Court maintained that it had to consider the well-being of both the woman and the unborn child.
Previously, the Delhi High Court had allowed the abortion but later reversed its decision following medical opinions affirming the foetus’s health. The woman then challenged this reversal, but the Supreme Court upheld the High Court’s final decision. The January 23 order from the Delhi High Court indicated that the absence of foetal abnormalities did not justify the termination of the pregnancy.
Under the Medical Termination of Pregnancy (MTP) Rules in India, a woman is permitted to terminate her pregnancy up to 24 weeks under specific conditions. The Supreme Court’s refusal in this case underscores the legal and ethical complexities involved when considering late-term abortions, especially when the foetus is deemed healthy and viable.
The order may be read here:
The Bombay High Court in June 2023 made a controversial decision regarding a 15-year-old rape victim’s plea to terminate her 28-week pregnancy. Despite the rape, the court denied her request to terminate her 28-week pregnancy due to the high chance of the baby surviving and potential health risks from a late-stage abortion. While acknowledging the trauma of the assault, the court also questioned the nature of the relationship due to the victim being with the man for a while. Ultimately, prioritizing the potential child’s well-being, they ordered the victim to continue the pregnancy in a shelter home, deliver the baby, and receive counselling. This case highlights the difficult legal and ethical dilemmas surrounding pregnancy from sexual assault, especially when the foetus is nearing viability.
In a heart-wrenching case, the Rajasthan High Court in January 2024 rejected a plea from an 11-year-old rape victim seeking medical termination of her advanced pregnancy. The court’s decision rested on two main points. Firstly, they recognized the foetus’s right to life, considering its developed state at over 31 weeks. Secondly, medical experts advised that an abortion at this stage would be dangerous for both the young girl and the foetus due to her underweight condition and abnormal liver function tests.
The court acknowledged the girl’s difficult situation, with no immediate family to care for her or the baby. They offered her the option to keep the child or pursue adoption through legal channels. Finally, the court referenced similar cases and a recent Supreme Court decision that upheld the rights of a viable foetus, even in situations involving a married woman.
This case presents a complex legal and ethical dilemma. While the court prioritizes the foetus’s right to life, the decision forces an 11-year-old victim to carry a pregnancy resulting from a horrific crime. The court’s efforts to ensure her well-being offer some solace, but the physical and emotional toll on such a young girl remain a stark reality.
The order may be read here:
The Supreme Court of India overturned a Gujarat High Court decision in August 2023 denying a 25-year-old rape victim’s plea for abortion. This landmark case highlights the legal and emotional complexities surrounding pregnancy resulting from sexual assault.
The victim, an Adivasi woman from a remote village, was allegedly raped under false pretences of marriage. At 26 weeks pregnant, she sought permission to terminate the pregnancy through the Gujarat High Court. Despite a medical board’s approval, her plea was dismissed. The Supreme Court, however, took a strong stance. Justices Nagarathna and Bhuyan emphasized the trauma caused by such pregnancies and the burden placed on rape survivors forced to carry them. They argued that continuing the pregnancy would perpetuate the trauma. The Court’s order emphasized the societal pressures surrounding pregnancy outside marriage, especially after rape. It acknowledged that such pregnancies are involuntary and cause immense physical and mental stress. This landmark case reaffirms a woman’s right to bodily autonomy and freedom from forced pregnancy, especially in cases of rape. It also sheds light on the ongoing struggle to balance the rights of the woman and the foetus in such situations.
The order may be read here:
In May 2024, a 20-year-old woman preparing for her NEET exams was denied permission by the Delhi High Court to terminate her 27-week pregnancy. Citing the foetus’ healthy condition and lack of medical complications, the court ruled against termination as it wouldn’t be legal or ethical. While acknowledging the potential challenges for the unmarried woman, the court prioritized the well-being of both the viable foetus and the mother’s future health. The court offered alternative solutions, suggesting delivery at a reputable hospital and facilitating adoption if the woman chooses not to raise the child.
The judgement may be read here:
The Legal Ambiguity and dilemma
Recent court decisions in India regarding abortion paint a picture of a legal landscape riddled with ambiguity and inconsistency. This lack of clarity creates a labyrinthine experience for women seeking safe and legal terminations, with their access hinging on factors as unpredictable as the judge presiding over their case and the specific state they reside in.
At the heart of the discrepancies lies the struggle to balance the rights of the woman with the potential life of the foetus. In some cases, courts prioritize foetal viability even in harrowing circumstances. The Bombay High Court’s denial of a 15-year-old rape victim’s abortion request, citing the baby’s potential survival, exemplifies this. Here, the court seemingly overlooks the trauma of the assault, prioritizing the foetus over the girl’s physical and emotional well-being. Conversely, the Supreme Court’s landmark decision allowing a 14-year-old rape survivor to terminate her late-term pregnancy shows a more nuanced approach, recognizing the potential harm to the minor in continuing the pregnancy.
The Medical Termination of Pregnancy (MTP) Act of 1971, while a step towards legal abortions, fails to provide a clear roadmap for navigating these complex situations. The Act’s ambiguity surrounding factors like foetal abnormalities, mental health risks, and the gestational limit (24 weeks) leaves room for wide-ranging interpretations. This discretion granted to judges, influenced by personal beliefs and societal values, results in a cacophony of conflicting decisions.
These conflicting judgments underscore the urgent need for legal reforms. A rights-based approach that prioritizes a woman’s bodily autonomy and right to informed reproductive choices is paramount. The MTP Act requires revisions to provide clear and comprehensive guidelines on applying the law. This ensures consistent interpretation across all jurisdictions, eliminating the geographical lottery that currently determines a woman’s access to safe abortion services. Legislative reforms must also address the emotional and mental health aspects of pregnancy, ensuring women facing difficult circumstances like rape or severe mental health issues have clear legal recourse.
Until these reforms materialize, the legal landscape surrounding abortion rights in India will remain a labyrinth. Vulnerable women, especially those in marginalized communities or facing extraordinary circumstances, will continue to be at the mercy of a system fraught with contradictions and societal pressures. The path to safe and legal abortion services in India should not be a gamble – it should be a right, consistently upheld and protected by the law.
Contrasting Approaches to Abortion Rights: India and France
India’s approach to abortion rights presents a mixed picture. The Medical Termination of Pregnancy (MTP) Act, 1971, with its 2021 amendments, offers a legal pathway for abortion access. However, this framework is riddled with ambiguities. The Act lacks clear definitions for crucial aspects like foetal abnormalities and mental health risks, leading to inconsistent court decisions and hindering access for women. Procedural hurdles, provider shortages, and societal stigma surrounding abortion further limit access, especially in rural areas. This forces some women towards unsafe procedures, endangering their health.
In stark contrast stands France. On International Women’s Day 2024, President Emmanuel Macron signed an amendment that enshrines abortion rights in the French Constitution. French legislators approved the constitutional amendment on Monday in a 780-72 vote that was backed by many far-right lawmakers.
By enshrining abortion rights in its constitution, France guarantees a high level of legal certainty and stability for women’s reproductive choices. This constitutional right offers significantly stronger protection compared to India’s legislation, making it harder to restrict access in the future. Additionally, France boasts a comprehensive healthcare system ensuring widespread access to abortion services.
While India has made strides with the MTP Act, legislative reforms are crucial to address ambiguities, ensure uniform implementation, and guarantee equitable access for all women. Public discourse also needs to evolve to overcome societal stigma. France’s constitutional approach offers a model for guaranteeing abortion rights, but India’s journey requires continuous efforts to bridge the gap between legal framework and social acceptance.
In essence, France stands as a leader in guaranteeing abortion rights, while India’s journey towards ensuring safe and accessible abortion services for all women continues.
Conclusion: A Path Forward for India’s Abortion Rights
India’s journey towards guaranteeing safe and accessible abortion services for all women remains a work in progress. The current legal landscape is a complex maze of ambiguities and inconsistencies, leaving women’s access to safe abortion services heavily dependent on factors beyond their control.
The recent court decisions highlight the crucial need for legislative reforms. The Medical Termination of Pregnancy Act requires revisions to establish clear guidelines for crucial aspects like foetal abnormalities, mental health considerations, and the gestational limit. This will ensure consistent interpretation and application across the country, eliminating the geographical lottery that currently determines women’s access to safe abortion.
Legislative reforms must also address the emotional and mental health aspects of abortion, ensuring women facing difficult circumstances have clear legal recourse. Striking a balance between a woman’s bodily autonomy and the potential life of the foetus is a complex but necessary task.
France’s recent move to enshrine abortion rights in its constitution offers a powerful model. Such a step would significantly strengthen the legal protection for abortion access in India and make it harder to restrict these rights in the future.
Beyond legal reforms, evolving public discourse is critical. Addressing societal stigma surrounding abortion is essential to ensure safe and legal services are readily available and utilized without fear or judgment.
The path to safe and legal abortion in India should not be a gamble. It should be a guaranteed right, consistently upheld and protected by the law. By prioritizing a rights-based approach that empowers women and prioritizes their reproductive choices, India can move towards a future where all women have equal access to the healthcare they deserve.
[1] https://www.livelaw.in/top-stories/supreme-court-allows-termination-of-28-week-pregnancy-of-14-year-old-rape-survivor-255723
[2] https://thewire.in/law/supreme-court-refuses-to-allow-widowed-woman-to-terminate-32-week-pregnancy
[3] https://www.livelaw.in/high-court/bombay-high-court/bombay-high-court-denies-teenage-rape-victim-abortion-request-231351
[4] https://www.livelaw.in/high-court/rajasthan-high-court/rajasthan-high-court-denies-advanced-pregnancy-termination-minor-rape-victim-foetus-right-to-life-article-21-constitution-247558
[5] https://cjp.org.in/sc-allows-rape-survivor-to-abort-her-foetus-affirms-that-state-should-not-interfere-in-decisions-of-reproduction/#:~:text=On%20August%2021%2C%20the%20Supreme,by%20the%20Gujarat%20High%20Court.
[6] https://www.livelaw.in/high-court/delhi-high-court/delhi-high-court-deny-unmarried-woman-terminate-27-weeks-pregnancy-257345
[7] https://www.senat.fr/leg/tas23-073.html
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