At the Crossroads

Vacillation by courts while deciding MTP cases shows the enormity and difficulty of their decisions. The rights of the mother have to be balanced with that of the child and require great sensitivity

By Dr Swati Jindal Garg

In an exceptional judgment, the Supreme Court first allowed a 14-year-old sexual assault victim to terminate her almost 30-week pregnancy terming it a “very very exceptional case where we have to protect her”, but then recalled the order after interacting with her parents. The order came on the heels of another one passed by the Bombay High Court where relief was denied to the rape survivor.

The apex court order regarding termination was passed by a bench presided by Chief Justice of India DY Chandrachud after reading the report submitted by the dean of Lokmanya Tilak Municipal General Hospital and Medical College, Sion, Mumbai. The bench said the report “has clearly opined that the continuation of the pregnancy against the will of the minor may impact negatively on the physical and mental well-being of a minor who is barely 14 years old”.

The bench had further asked the dean to constitute a special team to undertake the medical termination of pregnancy of the minor. Allowing the procedure at that time, the bench had said this was necessary “bearing in mind the exigencies of the situation and the welfare of the minor which is of paramount importance and her safety….”

The apex court even went to the extent of saying that the state has agreed to bear all the expenses of the procedure. The Supreme Court added that if post-termination, any further medical care is required, it may be ensured in the interest of the minor. 

However, the procedure could not go through and a week later, after interacting with the parents of the girl and understanding their concern over her health if she were to undergo MTP at such an advanced stage of pregnancy, the Court recalled its earlier order. The parents have expressed their willingness to get a natural delivery done in the normal course.

The case took note of the fact that an FIR regarding the offence under various sections of the Indian Penal Code and the Protection of Children from Sexual Offences Act was registered in connection with the crime. This was recorded beyond the period of 24 weeks. Incidentally, the MTP Act does not permit abortions beyond 24 weeks.

The Court was also considerate of the fact that the medical report relied on by the Bombay High Court did not contain an evaluation of the physical and mental status of the minor, particularly with regard to the background leading up to the pregnancy, including the alleged sexual assault. Taking into account this grave lapse, the Supreme Court asked Sion Hospital to constitute a medical board to examine the victim afresh. Accordingly, the hospital set up a team of six doctors, which medically examined her again.

The case is unique in the sense that even though abortion in India has been legalised, the MTP Act’s upper limit for it is 24 weeks. The current ruling passed by the apex court wherein it initially allowed the termination, but recalled the order, has again set the ball rolling regarding the time limit for abortion. 

In the recent past, a 26-year-old married woman was also denied the right to terminate her 32 weeks pregnancy. She had claimed that it was unplanned and she did not have the resources or the mental frame to support the child. The case came up before a three-judge bench after a two-judge one had delivered a split verdict on the woman’s plea. This two-judge bench, comprising Justices Hima Kohli and BV Nagarathna of the SC, had allowed the abortion in a previous hearing, but Justice Kohli reversed her judgment after the Union government sought a recall order based on an opinion from a doctor at AIIMS who said that the foetus was viable. Subsequently, permission was denied by the three judge bench too.

This is not the first time that the Supreme Court has been sensitive to the tussle between the mother’s right to terminate an unwanted pregnancy vis-à-vis the right to life of the unborn foetus. In August last year, a bench headed by Justice Nagarathna had held a special sitting on a Saturday (when the Court is shut) to allow termination of a rape survivor’s pregnancy at 27 weeks and three days.

In 2022, a bench led by Justice Chandrachud had also allowed abortion to an un­married woman who was 24 weeks pregnant, and had been in a consensual relationship. Citing “transformative constitutionalism” that promotes and engenders societal change, the bench had said that “the law must remain cognizant of the fact that changes in society have ushered in significant changes in family structures”.

Then there are cases where the courts have overruled the decision of the medical board to allow termination as in Bhatou Boro vs State of Assam where the Gauhati High Court allowed termination of pregnancy of over 26 weeks of a minor rape survivor.

The law on abortions in India is governed by The Medical Termination of Pregnancy Act, 1971, which allows the termination of pregnancy under certain circumstances. While termination is allowed on the advice of one doctor upto a period of 20 weeks, in the case of a pregnancy of 20-24 weeks, abortion is only allowed as an exception under certain categories, and that too after two registered medical practitioners have evaluated the right to seek termination.

Section 3B of the Rules under the MTP Act lists seven categories of forced pregnancies:

(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).

(e) Mentally-ill women, including mental retardation.

(f) 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.

(g) Women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the government.

After 24 weeks of pregnancy, the law requires that a medical board be set up in “approved facilities”, which may “allow or deny termination of pregnancy” only if there is substantial foetal abnormality.

In a much discussed judgment passed last year, the CJI-led bench said that the rights of a woman “must trump” when it comes to abortion, and that there was a need to “balance out the rights of the unborn child”. “There is no doubt that our law is far ahead of other countries. We will not have a ‘Roe versus Wade’ situation here. Our law is liberal and pro-choice,” the CJI had observed.

In the landmark 1973 US Supreme Court verdict of Roe vs Wade, US courts had made abortion a constitutional right, allowing it up to the point of foetal viability—the time after which a foetus can survive outside the womb. Hence, even though Indian courts have read the MTP Act liberally, the test of “foetal viability” as a benchmark to allow abortion is new in this country. 

While foetal viability in 1973 was pegged at 28 weeks (seven months), the same may stand at 23-24 weeks (six months) with scientific advancement. Hence it has been argued that foetal viability is an arbitrary standard which may keep changing depending upon scientific advancement.

The law of abortion in India as it stands today has indeed come a long way—starting with the 1960s when termination/abortion was punishable under law, till 1971 when based on the report of the Shantilal Shah Committee, a medical termination bill was introduced in the Lok Sabha and Rajya Sabha and passed by Parliament in August 1971.

However, the criticism of the Indian law is that the decision of whether a termination should be allowed beyond 20 weeks is shifted to the doctors and not the woman who carries the child. It then becomes a point of debate whether the mother is mentally prepared to give birth to the child or not. 

The recent trend where a vacillation is seen by courts between granting termination and then recalling it shows the enormity and difficulty of their decisions. While most think that the decision to keep or not keep a child should rest with the pregnant woman alone, the rights of the unborn child also cannot be ignored.

Finding the right balance between both is the key. 

—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi