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The Supreme Court has allowed a 14-year-old victim of sexual assault to terminate her almost 30-week pregnancy. A Bench led by Chief Justice of India (CJI) D Y Chandrachud on Monday (April 22) said it was a “very very exceptional case where we have to protect her (the girl)”.
A Bench noted that a report submitted by the dean of a municipal hospital in Mumbai on the case had “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”.
Is it unusual for courts to allow an abortion this late into a pregnancy? Under what circumstances is termination allowed?
The Medical Termination of Pregnancy Act, 1971 (MTP Act) allows the termination of pregnancy under the following circumstances.
Upto 20 weeks, termination is allowed on the advice of one doctor.
In case of a pregnancy of 20-24 weeks, abortion is allowed as an exception, but only under certain categories, 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, including statutory rape in case of minors or sexual assault; women with disabilities; or when there is a change in marital status of women during pregnancy.
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.
Has the court allowed termination beyond this period?
Yes, it has, in certain cases.
On February 1 this year, the Supreme Court refused to allow a 26-year-old woman to terminate her 32-week pregnancy after the Delhi High Court first allowed the abortion and then recalled its order following a plea by the Centre to consider protecting the right to life of the unborn baby.
On October 16, 2023, a three-judge Bench led by the CJI had rejected a married woman’s plea to abort her third pregnancy who had pleaded that it was unplanned, and that she did not have the resources or the mental frame to support the child.
This case had come to the three-judge Bench after a two-judge Bench delivered a split verdict on the woman’s plea. This Bench, comprising Justices Hima Kohli and B V Nagarathna had allowed the abortion on October 9, 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.
Earlier, on August 21, 2023, a Bench headed by Justice Nagarathna had held a special sitting on a Saturday (when the court is shut) to allow termination of pregnancy of a rape survivor whose pregnancy was at 27 weeks and three days.
Before that, in September 2022, a Bench led by Justice Chandrachud (who was not CJI at the time) had allowed abortion for an unmarried woman who was 24 weeks pregnant, and had been in a consensual relationship. The Bench had on that occasion cited “transformative constitutionalism” that promotes and engenders societal change, and said that “the law must remain cognizant of the fact that changes in society have ushered in significant changes in family structures”.
There are also instances in which a court has overruled the decision of the medical board to allow termination. In ‘Bhatou Boro v. State of Assam’ (2017), Gauhati High Court overruled the medical board’s refusal to give an opinion for termination of pregnancy of over 26 weeks of a minor rape survivor.
On October 13 last year, the CJI-led Bench made observations saying both 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.
While courts have read the MTP Act liberally, the test of “foetal viability” as a benchmark to allow abortion is new in India. The landmark 1973 US Supreme Court verdict in ‘Roe v Wade’ that made abortion a constitutional right allowed abortion up to the point of foetal viability, that is, the time after which a foetus can survive outside the womb.
Foetal viability in 1973 was pegged at 28 weeks (7 months), which is now with scientific advancement lower at 23-24 weeks (6 months). It has been argued, therefore, that foetal viability is an arbitrary standard.
The criticism of India’s law is that the decision to terminate after 20 weeks is shifted to doctors and not the woman. While this aspect is not challenged in court, frequent cases of women approaching the court at the eleventh hour point to a legislative gap.
The Indian legal framework on reproductive rights tilts to the side of the woman’s autonomy to decide and choose more than towards the rights of the unborn child.
This is a revised and updated version of an explainer that was first published on October 14, 2023.
