Central idea

A recent Supreme Court case in India has spotlighted reproductive autonomy. It centers on a 27-year-old mother of two, grappling with an unwanted pregnancy due to lactational amenorrhea, igniting a debate on India’s abortion rights, known for their relative liberalism.

Background

India’s population policy promotes a two-child norm, making it seemingly unremarkable for a woman to seek an abortion to avoid becoming a mother for the third time.
However, this case is far from straightforward due to the pregnancy being at 26 weeks, exceeding the gestational limit prescribed in the 2021 Medical Termination of Pregnancy (MTP) Act.
In such cases, medical practitioners’ opinions hold paramount importance.

Interchangeable Terminology: The heart of the matter lies in the interchangeable use of terms like foetus, child, and baby, particularly given the advanced stage of pregnancy. This linguistic flexibility can significantly impact the ethical considerations of the case.
Concerns of Foeticide: As the pregnancy had reached 26 weeks, concerns emerged regarding the termination possibly constituting “foeticide.” The advanced stage of pregnancy blurs the line between a developing foetus and a potentially viable child, leading to ethical dilemmas.
Justice Nagarathna’s Emphasis: Justice Nagarathna emphasized the paramount importance of prioritizing the petitioner’s decision and upholding her reproductive autonomy. Her stance echoes Justice D Y Chandrachud’s earlier observation regarding the intrinsic right of pregnant women to choose abortion without the need for consent or authorization from a third party.
Balancing Reproductive Autonomy and Ethics: The case highlights the intricate balance required between recognizing and safeguarding the fundamental rights of pregnant women to make choices about their bodies and reproductive health, while simultaneously addressing the ethical dimensions of such decisions within the framework of societal values and laws.

MTP Act of 1971: The Medical Termination of Pregnancy (MTP) Act of 1971 was the foundational legislation that regulated abortion in India. It permitted abortions up to 20 weeks of gestation under specific conditions, such as the risk to the life or physical or mental health of the pregnant woman.
Amendment in 2021: In 2021, the MTP Act underwent significant amendments to modernize and liberalize India’s abortion laws. The key changes included:

- Extending the permissible gestational limit from 20 to 24 weeks.
- Expanding access to abortion services by allowing a broader range of healthcare providers to perform abortions, including mid-level providers.

Constitution of Medical Boards: The 2021 amendment introduced provisions for the constitution of Medical Boards. These boards consist of medical experts responsible for assessing cases where pregnancy termination is sought beyond 24 weeks.
Reducing Dependency on Courts: By allowing Medical Boards to make determinations, the amendment sought to reduce the burden on the judicial system and expedite the decision-making process for cases involving late-term pregnancies.

Citizen with Agency: The petitioner approached the court as an empowered citizen, asserting her right to make choices about her own body.
Socially Accepted Context: Her pregnancy occurred within societal norms, emphasizing that reproductive autonomy applies broadly.
Sound Mental Health: Her rational decision challenges stereotypes about individuals seeking abortions.
Absence of Foetal Anomalies: Her request is driven by personal choice, not medical necessity.
Reproductive Choice: She firmly expressed her desire not to have another child, highlighting the importance of individual reproductive decisions.
Seeking State Support: By seeking state support for safe abortion services, she aligns with international commitments on access to reproductive healthcare as a human right.

This case underscores the battle between reproductive autonomy and ethical considerations surrounding abortion in India. As women navigate the complex journey to assert their reproductive rights, questions arise about whether they can truly claim ownership of their bodies on their own terms.