Right Of Foetus v. Woman's Autonomy : Contrasting Judicial Approaches

'Pro-life' v 'Pro-choice' is an issue that countries around the world continue to debate. The significance of this issue is so profound that a country, which supposedly is the world's oldest democracy, overturned its 50-year-old Roe v Wade decision, which protected women's right to abortion as an intrinsic part of the right to privacy.Fortunately, India doesn't have that kind of problem because we have a legislation, the Medical Termination of Pregnancy Act, 1971(as amended in 2021)(MTPA), which regulates the right to abortion. However, the legislation provides for an upper limitation of the gestation period, that is, 24 weeks, during which pregnancy can be terminated, except in two circumstances - where it is necessary to avoid imminent danger to the woman's life, or if there are substantial foetal abnormalities.Once the statutory upper limit is crossed, the Courts are the ultimate decision makers, which induces an element of subjectivity to the decision, reflected in the recent judgments where contradictory opinions may have emerged over whether foetal viability should prevail over reproductive choices of women. What is the MTPA legislation?Section 3 of the MTPA categorises the right to terminate pregnancy in three categories. 1. Till 20 weeksIf the gestation period is till 20 weeks, a woman can terminate pregnancy based on her consent and on the opinion of one registered medical practitioner ifContinuance of pregnancy would involve a risk to life/cause grave injury to her physical or mental health: anguish caused due to failure of contraception pills, either by a woman or her partner, would be “presumed” to constitute a grave injury to mental health/anguish caused by pregnancy due to rape also falls within grave injury to mental healthThere is a substantial risk that the child born would suffer from a physical or mental abnormalityIn order to determine if continuation of pregnancy would risk the woman of grave injury, the woman's actual or reasonably foreseeable environment should be considered. If a woman is a minor or mentally ill, pregnancy can't be terminated without the consent in writing of her guardian.2. From 20-24 WeeksOn October 12, 2021, the Union Government notified the Medical Termination of Pregnancy (Amendment) Rules 2021, in which the categories of women eligible for abortion of pregnancy up to 24 weeks were specified. They are :(a) survivors of sexual assault or rape or incest;(b) minors;(c) change of marital status during the ongoing pregnancy (widowhood and divorce);(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];(e) mentally ill women including mental retardation;(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.The upper gestational limit from 20 weeks to 24 weeks was increased in the 2021 amendment. Also of interest to note that the amendment modified the words 'wife' and 'husband' to 'woman' and 'partner' respectively, to not restrict the benefits of abortion to matrimonial relationships only.3. 24 Weeks beyondThe legislation doesn't talk beyond 24 weeks, and parties have to approach the constitutional courts under Article 32 or 226. Rule 3A(a)(i), inserted by the 2021 amendment, says that the Medical Board shall have the power to allow or deny termination of pregnancy beyond 24 weeks, considering that the procedure is safe for the woman and whether fetal malformation has a substantial risk of being incompatible with life, or the child born would be seriously handicapped.Under the Act, it is presumed that the gestation period limitation doesn't apply when the termination is necessitated by substantial foetal abnormalities diagnosed by a Medical Board or where the medical practitioner is of the opinion that the termination of pregnancy is “immediately” necessary to save the life of the pregnant woman.The controversyRecently, a bench of Justices BV Nagarathna has allowed the termination of the pregnancy of two minors at the gestation period of 28 weeks and 30 weeks, respectively. Since both cases fell beyond the statutory limit, the Court invoked Article 142 to state that the decisive factor would be the clear and consistent unwillingness of the minor to continue the pregnancy.In the April 2026 case, in S v. UOI(2026), a mother approached the Court for the termination of 28 weeks pregnancy of her 15 years old daughter after the Delhi High Court refused. The High Court directed All India Institute of Medical Science(AIIMS) to constitute a Medical Board, which stated that even though the minor doesn't suffer from any psychiatric and psychological issues, termination of pregnancy may entail a significant risk, to the ...

Right Of Foetus v. Woman's Autonomy : Contrasting Judicial Approaches

Gursimran Kaur Bakshi

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Right Of Foetus v. Woman's Autonomy : Contrasting Judicial Approaches

Gursimran Kaur Bakshi

This is a premium content Available exclusively to Our subscribers

INR 1099+GST

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