This month, the Supreme Court overturned a Bombay High Court judgment, permitting a teenager to terminate her pregnancy at 30 weeks. The Medical Termination of Pregnancy (MTP) Act, 2021, expanded the permissible gestational limits for women to seek an abortion up to 24 weeks, under certain conditions. However, courts have had to decide on late-term abortions on numerous occasions, and the outcome has been far from uniform.
In the present instance, the Court has not only permitted the abortion but also made some important observations regarding women’s reproductive autonomy. It has emphatically stated that “the court cannot compel” completion of a pregnancy if a woman is “not intending to do so”. In this affirmation of reproductive autonomy, a prominent logic that the Court has articulated pertains to issues of health.
First, the Court acknowledges that a non-permissible, restrictive legal approach towards abortion does not necessarily prevent it. Rather, it compounds the risk of unsafe abortions by “quacks and unauthorised doctors”. Therefore, access to MTP is a crucial cornerstone of reproductive autonomy.
Second, given that there is no absolute “right” to abortion under the law in India, an important parameter for determining permissibility has been an assessment of “dangers” to health.
This, in turn, includes two questions: Whose health and how is health understood? Courts often consider dangers to the health of the woman who is pregnant and/or that of the foetus. Globally, there are wide and complex ethico-legal debates around the foetus’s legal personhood, its competing claims at a “right to life” as against the “choice” exercised by women who are pregnant.
The Bombay HC judgment that stands overturned, in fact, claimed that termination of this pregnancy when the foetus is “healthy and viable” cannot be permitted. In its ruling, the SC sets this aside to prioritise women’s unwillingness over other factors.
In so doing, it seeks to consider “mental trauma”, and therefore, mental health is placed on a par with physical health. These very welcome moves foreground a health approach to reproductive autonomy, and move it away from the polarising pro-life vs pro-choice terms.
This case also puts the spotlight on the question of women and their autonomy in general. Previously, a similar petition to terminate a 26-week pregnancy by a 27-year-old married woman in 2023 was rejected by the SC. How, then, do we understand these different outcomes?
According to reports, in the present case, the one who is pregnant is referred to as a “child” by the Court. She is reported to have turned 18 a few months ago, but conceived the pregnancy as a minor, and it is her mother who has petitioned the court on her behalf. In its observations, the Court refers to her as the “child”, but in general terms, “women’s autonomy” is evoked.
The Court has set aside the question of whether the relationship through which she conceived was consensual or not. However, given her unmarried status, that “this is an illegitimate child” is a formidable observation for the Court. The arguable social illegitimacy of a minor’s pregnancy outside of marriage seems to have evoked the Court’s empathetic stance.
In a world where the abuse that minors face and affronts to their life and dignity seem to have been numbingly normalised, it is commendable that the SC is unequivocal in arguing that minors cannot be compelled to see through a pregnancy. It sets a much-needed precedent.
The counterfactual question is this: What if the pregnancy wasn’t “illegitimate” and the pregnant woman was not a minor? The petitioner in the 2023 case had, in fact, also submitted that her previous pregnancy had taken a toll on her mental health and that the pregnancy under review was “unwanted”. It is clear that the institution of marriage determines women’s experience of what are otherwise fundamental rights.
Indian women’s sexual, reproductive, and, in general, “autonomy” is overshadowed by their marital status. In this sense, the “legitimacy” question ties the marital rape exception to the intertwining of marriage and motherhood. Therefore, the observation that “the mother’s reproductive autonomy must be given emphasis” should become the guiding light in cases of this nature, without exceptionalism around marriage.
The Indian state has affirmed its commitment to women’s reproductive autonomy globally as well as in its own laws. This case presents an opportunity to address some inconsistencies. Reproductive health concerns should take mental health seriously. Women’s reproductive autonomy should be seen as an inalienable right that isn’t subject to social or legal categories such as age and marital status.
The writer is assistant professor, Department of Political Science, University of Hyderabad. Views are personal
